-r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Univ.   of  VM^rnio 

Withdrawn 


ft 


til    ][3arliaiii^aturia    Int^rirami, 


ELEMENTS 


OF   THE 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE  ASSEMBLIES 


IN  THE 


UXITED   STATES   OF  AMERICA, 


BY 


LUTHER  STEARNS  GUSHING. 


SECOXD   EDITION. 


BOSTON: 

LITTLE,    BROWN    AND     COMPANY 

186  6 


Entered  according  to  Act  of  Congress,  in  the  year  1856,  by 

LUTHER    S.    OUSHING, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


T 


MRISPgUDENGt 


^ 

's.. 


LAW  AND  PRACTICE 


OF 


LEGISLATIYE  ASSEMBLIES. 


TO   THE    HONORABLE 

ROBERT  CHARLES  WINTHROP,  LL.  D., 

WHO  WAS,  FOR  MANY   TEARS, 

SPEAKER  OF  THE  HOUSE  OF  REPRESENTATIVES  OF  MASSACHITSETTS : 

ASD    WHO,    AFTERWARDS,    AS     SPEAKER    OF    THE     HOUSE    OF    REPRESENTATIVES    OF    THH 

t5ITED    STATES,    FOR    THE    THIRTIETH    CONGRESS, 

PERFORMED    THE    DUTIES    OP    THAT    OFFICE    WITH    SINGULAR    ABILITY  J 

THIS    VOLUME 

IS     HUMBLY     DEDICATED 

AS    A   TESTIMONIAL    OP    RESPECT    AND    AFFECTIOH 
BT  TBE 

AUTHOR. 


671488 


ADYEllTISEME^^T. 


The  intelligent  reader  of  history  needs  scarcely  to  be  informed, 
that  all  the  principles  of  civil  liberty  which  now  bear  so  abundant 
fruit,  at  least,  in  this  country,  fu'st  germinated  in,  or  were  intro- 
duced into,  the  British  Parliament,  especially  the  House  of 
Commons;  and  this  circumstance  has  furnished  an  almost  irre- 
sistible temptation  to  indulge  in  political  disquisition  ;  but  I  have 
resolutely  abstained  from  every  thing  like  it  in  the  foUowdng  pages, 
and  have  confined  myself  to  a  statement  of  the  law  and  practice  of 
parliament  as  a  matter  of  fact  merely. 

In  compiling  the  following  work,  I  have  endeavored  to  present 
the  American  reader  with  as  much  of  the  law  and  practice  of  par- 
liament, as  could,  by  any  possibility,  be  useful,  either  as  illustration 
or  authority,  to  the  members  who  compose  our  legislative  assem- 
blies. 

The  reader  of  the  following  pages,  who  is  acquainted  with  the 
science  of  parliamentary  law,  only  as  it  is  set  forth  in  the  brief 
manuals  hitherto  published  in  this  country,  or  the  small  English 
treatises  published  in  the  seventeenth  century,  will,  doubtless,  be 
astonished  to  find  it  so  copious;  while  those  who  are  more  familiar 
with  the  voluminous  collections  of  the  debates  and  journals  of 
Parliament  and  of  Congress,  will  be  equally  astonished  to  find  that 
the  science  of  parliamentary  law  can  be  compressed  into  so  small 
a  compass. 

Sir  Edward  Coke,  who  had  been  speaker  of  the  House  of  Com- 


VIU  ADVERTISEMENT. 

mons  in  one  of  Queen  Elizabeth's  parliaments,  says,  in  his  Fourth 
Institute,  when  discoursing  of  the  high  court  of  parliament,  that 
"  as  every  court  of  justice  has  laws  and  customs  for  its  direction, 
some  by  the  common  law ;  some  by  the  civil  and  canon  law ;  some 
by  peculiar  laws  and  customs ;  so  the  high  court  of  parliament  sub- 
sists by  its  own  laws  and  customs ;  that  it  is  the  law  and  custom  of 
parliament,  that  all  weighty  matters  therein  concerning  the  peers 
of  the  realm  or  commons,  ought  to  be  determined,  adjudged,  and 
discussed,  according  to  the  course  of  parliament,  and  not  by  the 
civil  law,  nor  yet  by  the  common  law  used  in  the  more  inferior 
courts;"  and,  quoting  from  Fleta,  a  much  more  ancient  author,  he 
adds,  in  the  margin,  Ista  lex  ab  omnibus  est  quaerenda,  a  multis 
ig-norata,  a  paucis  cognita.  If  this  remark  was  a  statement  of  fact, 
merely,  it  was  not  only  true  at  the  time  it  was  uttered,  but  it  is 
doubtless  true  at  the  present  day ;  the  law  of  parliament,  though 
diligently  sought  by  all,  being  still  unknown  to  many,  and  known 
only  to  a  few.  It  was,  however,  the  enunciation  of  a  principle, 
probably  in  relation  to  the  matter  of  privilege,  and  was  made  and 
repeated  at  a  time  when  the  law  and  custom  of  parliament  was 
what  each  house  saw  fit  to  make  it,  and  when  the  proceedings  of 
parliament  were  conducted  with  closed  doors  and  in  secret,  and 
were  not  known,  in  fact,  or  supposed  to  be  so,  until  they  were 
officially  promulgated ;  for  which  reason,  the  judges.  Sir  Edward 
Coke  says,  ought  not  to  give  any  opinion  of  a  matter  of  parlia- 
ment. 

But  it  is  no  lonscer  true  as  it  was  in  the  time  of  Sir  Edward 
Coke,  that  the  law  of  parliament  is  vague  and  uncertain.  It  is 
now  a  branch  of  the  common  law  and  as  well  settled  as  any 
other ;  and  it  may  be  known  and  determined  beforehand,  with,  at 
least,  as  much  facility  and  certainty,  as  any  other  part  of  the  civil 
or  criminal  law. 

Of  this  vast  and  comprehensive  topic,  thus  brought  within  the 
domain  of  science,  it  is  proposed,  in  the  following  pages,  to  treat  of 
that  part  only  which  belongs  to  the  two  houses  of  parliament, 
irrespective  of  any  orders  of  either  house,  except  those  which 
embody  their  law  and  practice. 


ADVERTISEMENT.  IX 

The  subject  of  this  work  is  what  may  be  denominated  the  com- 
mon parliamentary  law  as  modified  in  our  legislative  assemblies. 

The  common  parliamentary  law  of  this  country  consists  of  the 
following  elements :  — 

1.  The  law  of  parliament,  or  that  which  belongs  to  every  legiir*- 
lative  assembly  of  Englisii  origin,  by  the  mere  fact  of  its  creation. 
The  best  evidence  of  this  is  to  be  found  in  the  usages  of  the  house 
of  commons.  In  this  country,  it  is  common  for  each  assembly, 
besides  the  common  parliamentary  law,  to  be  governed  by  its  own 
rules  and  orders. 

2.  Usages  introduced  by  practice  into  this  country,  and  which 
do  not  depend  for  their  existence  upon  any  rule  or  order.  The 
most  prominent  if  not   the   only  proceeding  of  this  kind  is  the 

•  motion  to  reconsider.     This  motion  is   usually  regulated  in  each 
assembly  by  a  special  rule. 

3.  Proceedings,  which  occasionally  take  place  in  parliament,  but 
are  in  frequent  use  in  this  country.  An  appeal  from  the  decision 
of  the  presiding  officer,  on  a  point  of  order,  is  of  this  kind. 

4.  Modifications  introduced  by  constitution.  The  most  com- 
mon provision  of  this  sort  is  the  requisition  that  certain  questions 
shall  be  taken  by  the  yeas  and  nays  of  the  members.  A  very  fre- 
quent provision  of  the  same  kind  is,  that  every  assembly  shall  be 
governed  by  its  own  rules  and  orders. 

5.  Proceedings,  which  very  commonly  prevail,  and  which  depend, 
for  their  existence,  upon  the  rules  and  orders  of  each  assembly,  and 
which  would  not  exist  unless  specially  provided  for  by  rules  and 
orders  for  the  purpose.  Thus,  it  is  generally  established,  in  our 
legislative  assemblies,  that  certain  motions  shall  be  decided  with- 
out debate  ;  that  motions  may  be  withdrawn,  modified,  or  divided^ 
at  the  pleasure  of  the  mover;  and  that  amendments  shall  be  in 
harmony  with  the  proposition  to  be  amended. 

In  the  execution  of  this  plan,  I  have  consulted,  —  besides  the 
works  on  the  general  subject,  Hackwill,  Scobell,  and  Elsyng,  pub- 
lished about  the  middle  of  the  seventeenth  century;  the  work  of 
Pettyt,  published  towards  the  close  of  the  seventeenth  century  ;  and 
that  of  ILnseil,  the  first  edition  of  which  was  published  towards  the 


X  ADVERTISEMENT. 

close  of  the  eighteenth ;  and  the  scientific  treatises  of  Mr.  May, 
recently  published ;  —  the  Journals  of  the  Lords  and  Commons ;  the 
various  works  on  controverted  elections;  and  the  debates  in  the 
two  houses  of  parliament  from  the  earliest  to  the  latest  times.  Of 
the  earlier  debates,  down  to  the  year  1803,  there  are  two  principal 
series.  The  first  consists  of  Sk  Symonds  D'Ewes's  journals  of 
Queen  Elizabeth's  parliaments;  the  first  volume  of  the  journals 
of  the  commons,  during  the  parliaments  of  James  First  and 
Charles  First ;  Grey's  Debates,  after  the  restoration,  in  ten  volumes  ; 
Commons  and  Lords'  Debates;  Parliamentary  Register,  of  which 
there  are  two  series ;  Debates  in  Parliament,  and  the  Cavendish 
Debates,  of  which  three  numbers  only  have  been  published. 

The  second  series  is  contained  in  Hansard's  Parliamentary  His- 
tory, extending  from  the  earliest  times  to  the  year  1803.  The  former" 
has  been  more  frequently  referred  to,  as  the  latter,  for  the  most 
part,  omits  points  of  order.  Hansard's,  sometimes  called  Gobbet's, 
Parliamentary  Debates,  extend  in  three  series,  from  about  the  year 
1803,  to  the  present  time.  The  series  is  indicated  in  each  case  by 
its  number.  .  I  have  consulted  for  the  American  practice,  the  Jour- 
nals and  Debates  in  the  two  Houses  of  Congress.  The  Journals 
and  Debates  of  the  Congress  of  the  Confederation  have  also  been 
consulted  for  the  same  purpose.  The  Journals  of  the  first  thirteen 
congresses,  having  been  reprinted,  are  cited  by  the  number  indicat- 
ing the  volume ;  those  of  the  fourteenth,  and  succeeding  congresses, 
are  referred  to  by  the  congress  and  session.  The  references  to  all 
these  works,  and  to  several  others  of  a  legal  or  miscellaneous 
character,  will  be  readily  known,  and  need  not  be  particularly 
described. 

The  only  scientific  treatises  on  parliamentary  law,  recently  pub- 
lished, are  those  of  Mr.  May,  whose  larger  work  has  lately  reached 
its  third  edition.  Whenever  it  is  cited  in  the  following  treatise, 
without  an  indication  of  the  edition,  the  second  is  always  refen-ed  to. 
His  smaller  work,  on  the  rules  and  orders  of  the  House  of  Com- 
mons, is  one  of  the  best  summaries  that  I  have  ever  seen.  Mr. 
Jefferson's  Manual,  which  has  been  so  frequently  republished,  has 
been  consulted,  and  freely  used,  both  as  regards  the  parliamentary 


ADVERTISEMENT.  XI 

laAV  of  England  and  the  changes  which  it  has  undergone  in  this 
country. 

I  commenced  accumulating  materials  for  this  work,  and  began 
the  writing  of  it  many  years  ago,  and  might  have  been  longer  in 
bringing  it  to  a  close ;  but,  admonished  by  ill  and  uncertain  health, 
that  if  I  would  make  sure  of  benefiting  my  fellow-countrymen, 
in  this  respect,  I  must  terminate  the  work  speedily,  I  have  made 
what  haste  I  could,  consistently  with  the  leisure  afforded  me  from 
other  pursuits.  I  do  not  mention  this  in  order  to  deprecate  criti- 
cism. The  book  has  been  prepared  according  to  its  original  plan, 
and  is  now  presented  to  the  public,  in  the  style  in  which  it  was  pro- 
posed. I  can,  however,  say  with  Mr.  Jefferson,  in  the  preface  to  his 
Manual: — "I  have  begun  a  sketch  which  those  who  come  after 
me  will  successively  correct  and  fill  up,  till  a  code  of  rules  shall  be 
formed  .  .  .  the  -effects  of  which  may  be  accuracy  in  business, 
economy  of  time,  order,  uniformity,  and  impartiality." 

The  references,  which  are  over  four  thousand  in  number,  and 
might  have  been  almost  indefinitely  increased,  are  not,  in  all  cases, 
available  as  direct  authority  for  the  positions  to  which  they  are 
cited.  In  such  cases,  they  indicate  merely  where  the  same  or  a 
similar  subject  is  treated  of.  With  the  exception  of  those  to  the 
Journals  of  the  Lords  and  Commons,  the  references  are  chiefly 
made,  not  from  the  books  themselves,  but  from  extracts  or  digests 
made  by  me  or  under  my  immediate  direction ;  it  is  probable,  there- 
fore, that  if  the  passage  referred  to  is  not  found  at  the  page  cited,  it 
will  be  on  an  adjoining  page. 

The  work  is  divided  into  nine  parts,  each  of  which  is  distinct  by 
itself;  and  this  division  is  not  only  natural  and  scientific  in  its 
character,  but  will  also  enable  the  reader,  by  means  of  the  titles  pre- 
fixed to  the  several  parts,  to  turn  to  and  examine  any  particular 
subject,  without  the  labor  of  going  over  the  whole. 

The  author  of  the  Lex  Parliamentaria,  in  the  conclusion  of  liis 
treatise,  addresses  himself  to  the  people  of  Great  Britain,  in  lan- 
guage which  is  equally  applicable  to  the  people  of  the  United 
States,  namely:  —  "  There  is  nothing  that  ought  to  be  so  dear  to 
the  Commons  of  Great  Britain,  as  a  Free  Parliament^  that  is,  a 


XU  ADVERTISEMENT. 

House  of  Commons  every  way  free  and  independent ;  .  .  •  free  in 
their  persons ;  free  in  their  estates ;  free  in  thou*  elections ;  free  in 
their  returns;  free  in  their  assembling;  free  in  their  speeches, 
debates,  and  determinations ;  free  to  complain  of  offenders ;  free 
in  their  prosecutions  for  offences ;  and  therein  free  from  the  fear  or 
influence  of  others,  how  gi-eat  soever ;  free  to  guard  against  the 
encroachments  of  arbitrary  power ;  free  to  preserve  the  liberties  and 
properties  of  the  subject,  and  yet  free  to  part  with  a  share  of  those 
properties,  when  necessary  for  the  service  of  the  public." 

L.  S.  G* 
BosTOx,  May  1    1856. 


TABLE   OF  CONTENTS. 


PAOl 

PRELIMINAEY 1-5 


PART    FIRST. 

OF  THE  ELECTION   OF  THE  MEMBERS. 


CHAPTER   FIEST. 

OP   CONSTITUENCIES 9-12 

CHAPTER    SECOND. 

OF   THE  PERSONS   COMPETENT   TO   BE   ELECTORS. 

Section  L     Of  persons  excluded  by  the  common  political  law  from  the 

riijht  of  sufTrase 13-16 

n.    Of  the  constitutional  qualifications  requisite  for  the  exercise  of 

the  right  of  suffrage     .        . 16-20 

1.  Citizenship 17 

2.  Freedom 17 

8.  Residence 17 

4.  Property      .........  20 

5.  Payment  of  a  tax 20 

6  to  12.  Other  qualifications 20 

b  (^ 


XIV 


CONTENTS. 


Section  m.     Of  disqualifications  for  the  exercise  of  the  right  of  suffrage  20-23 

1.  Paupers 21 

5.  Persons  convicted  of  certain  crimes  ...  21 

6,  Persons  of  color 22 

2, 3, 4,  7.  Other  disqualifications 23 


CHAPTER  THIRD. 


OF   THE  PERSONS   COMPETENT   TO   BE   ELECTED. 

Section  I.     Of  qualifications  and  disqualifications  by  the  common  politi- 
cal law         .        .  24-26 

n.     Of  qualifications  expressly  required 26-30 

HI.     Of  disqualifications  expressly  declared 30-33 

1.  Disqualifying  offices  or  employments      ...  31 

2.  Personal  disqualifications 32 


CHAPTER   FOURTH. 

OF    THE    MODE    OF    ELECTION. 

Section  L    Of  the  right  to  vote 34-36 

n.     Of  the  different  modes  of  voting         ...        .        .        .  36-43 

1.  Oral  suffrage 37 

2.  Ballot 39 

nr.    Of  the  principle  upon  which  the  residt  of  an  election  is  de- 
termined        43-48 

1.  Plurality         .........  44 

2.  Majority 45 

3.  Origin  and  introduction  of  the  majority  piinciple  .  47 


CHAPTER  FIFTH. 

OF  THE  RETURN  OF  THE  PERSONS  ELECTED 49-52 


CHAPTER  SIXTH. 


OF   CONTROVERTED   RETURNS   AND   ELECTIONS. 

Section  I.     Of  the  tribunal  and  mode  of  proceeding         ....  54-64 
H.     Of  rights  of  membership,  as  affected  by  the  form  or  substance 

of  the  return 64 

m.     Of  elections  of,  and  votes  given  for,  disqualified  persons       .  66 
IV.     Of  elections  as  affected  by  proceedings  injurious  to  the  free- 
dom of  election 6  7-71 

1.  Riots 68 

2.  Bribery 68 


CONTENTS.  XY 

Section  V.     Of  elections  as  affeoted  by  the  qualifications  and  conduct  of 

the  returning  oUicers 71-77 


PART    SECOND. 

OF    THE   CONSTITUTION   OF  A  LEGISLATIVE  ASSEMBLY. 


CHAPTER  FIRST. 

OF   THE   ASSEMBLING,   QUALIFYING,   AND   ORGANIZING   OF   A   LEGISLATIVE 

ASSEMBLY. 

Section  I.    Preliminary  proceedings  in  the  house  of  commons  in  Eng- 
land    . 82-86 

II.     Preliminary  proceedings  in  the  legislative  assemblies  of  the 

United  States 8G-94 

ni.     Quorum 94-101 

IV.     Compelling  attendance  of  absent  members        .        .        .  101-103 

V.     Organization 103-109 


•o" 


CHAPTER  SECOND. 

OF   THE   OFFICERS   OF   A   LEGISLATIVE   ASSEMBLY. 

Section  I.     Presiding  officer 110-127 

II.     Recording  officer 128-133 

III.  Executive  officer 133 

IV.  Chaplain 134 

V.    Printer 135 


CHAPTER  TIHRD. 

OF   THE  PLACE   AND   MAN-^N'ER   OF   SITTING    OF   A   LEGISLATIVE    ASSEMBLY, 

AND   OF    THE    FORMAL   PROCEEDINGS    THEREIN   FOR    THE 

TRANSACTION    OF    BUSINESS. 

Section  I.     Place  and  manner  of  sitting 136-145 

II.     Opening,  continuation,  and  close,  of  the  daily  sitting    .  145-151 
ni.     Personal  deportment  of  the  members,  Avhilst  the  assembly 

is  sitting       .........  152 

IV.    Manner  of  speaking 153-155 


XVI  CONTENTS. 

Section  V.     Of  the  several  forms  of  taking  the  question,  in  order  to 

ascertain  the  sense  of  a  legislative  assembly   .        .        .  155-167 
VI      Of  the  principle  or  rule  of  decision  in  a  legislative  assem- 
bly            167 

Vn.     Of  the  journal  or  record  of  the  proceedings  .        .        .  168-175 

VIII.     Of  the  printing  by  order  of  a  legislative  assembly      .        .  175-177 

IX.     Of  the  attendance  and  pay  of  the  members   .        .        .  177-182 


CHAPTER  FOURTH. 

OF    THK   FUNCTIONS   OF   THE    EXECUTIVE   IN   CONNECTION   WITH   THE 

LEGISLATIVE   DEPARTMENT 182-186 


CHAPTER   FIFTH. 

OF   VACANCIES,   AND   ELECTIONS   TO   FILL   THEM. 

Section  L     Refusal  to  accept 192 

II.     Refusal  to  qualify ,  193 

HI.     Resignation 193 

IV.     Expulsion 193 

V.     Adjudication  of  a  controverted  return  and  election           .  1 94 

VI.     Death 194 

VH.     Disqualification          .         . 195 

Vin.     Acceptance  of  disqualifying  or  incompatible  ofiices        .  195 
IX.     Of  vacancies  in  the  congress  of  the  United  States  .        .     196-200 


CHAPTER   SIXTH. 

OF   THE    SESSION,   ADJOURNMENT,   PROROGATION,   ASSEMBLING   BY  PROCLAMA- 
TION,  AND    DISSOLUTION    OF   A   LEGISLATIVE   ASSEMBLY. 

Section  I.     Session 200-206 

II.     Adjournment         .' 206 

in.     Prorogation 207-209 

IV.     AssemoHng  by  proclamation 209 

V.     Dissolution .        .  210 


CONTENTS.  XVll 


PART     THIRD. 

OF   THE    PRIVILEGES    AND    INCIDENTAL  POWERS  OF  A  LEGISLATIVE 

ASSEMBLY. 


CHAPTER  FIRST. 

DP    THE     GKXERAL    NATURE    OF  THE    PRIVILEGES     AXD    INCIDENTAL 

POWERS    OF    A   LEGISLATIVE    ASSEMBLY 215-222 


CHAPTER  SECOND. 

OF   THE   PERSONAL   PRIVILEGES   OF    THE   MEMBERS. 

Section  I.     Exemption  from  legal  process  ....     223-241 

Art.  L   Of  tlie  nature  and  extent  of  this  privilege  as  to 

persons  .        .  .  .  .  .  224 

H.    Of  the  cases  in  ■which  this  privilege  is  appli- 
cable ......  226 

HI.    Of  this  privilege   as  affected  by  the  constitu- 
tions of  the  several  States       .  .  .  229 
IV.    Of  the  duration  of  this  privilege        .             .  233 
V.    Of  the  manner  in  which  this  privilege  is  to  be 

taken  advantage  of     .  .  .  ,  235 

I.    Of  proceedings  by  the  authority  of  the 

assembly  ....  236 

II.    Of  proceedings  by  the  authority  of  the 

court  to  which  the  process  is  returnable  237 

HI.    Of  proceedings  by  the  authority  of  some 

other  competent  tribunal         .  .  233 

n.     Exemption  from  service  as  jurors  or  witnesses  .  241 

HI.     Freedom  of  debate  and  proceeding  .  .  .     242-244 

IV.     Privileffe  of  franking        .....  244 

V.     Personal  disabilities  incident  to  membership  .  .  244 


CHAPTER    THIRD. 

OF   THE   COLLECTIVE   OR   AGGREGATE   PRIVILEGES   OF   A   LEGISLATIVE 

ASSEMBLY. 

1,2.   Elections;  officers        ......  246 

3.   Rules  of  proceeding  .....  247 


XVUl  CONTENTS. 


4.  Attendance  and  service  of  its  members 

5.  Secrecy  of  debates  and  proceedings 

6.  Expulsion  or  discharge  of  a  member 

7.  Protection  against  personal  violence 

8.  Protection  against  slanderous  and  libellous  attacks 

9.  Protection  against  corruption  .  .  , 

10.  Right  to  be  informed  by  public  officers 

11.  Right  to  require  opinions  of  the  judges      .  . 

12.  Right  of  investigation 


247 
250 
250 
251 
261 
252 
252 
253 
253 


13.  Freedom  from  interference            .            .            .            .       .  254 
CHAPTER    FOURTH. 

OF   THE  INCIDENTAL   POWERS   OF   A    LEGISLATIVE   ASSEMBLY. 

Section  I.     Of  the  incidental  jurisdiction  of  a  legislative  assembly        .  257-259 

1.  Civil  jurisdiction              ....  258 

2.  Criminal  jurisdiction             ....  258 

3.  Jurisdiction  of  contempts           .             .             .  259 
n.     Of  the  mode  of  proceeding  by  a  legislative  assembly,  in 

the  exercise  of  its  judicial  functions       .            .            ,  260-265 

1.  Civil  proceedings           .            .            .            .  260 

2.  Criminal  proceedings           ....  262 

3.  Proceedings  in  case  of  contempt           .            .  265 
ni.    In  what  manner  the  judgments  of  a  legislative  assembly  are 

enforced  .......  265 

TV.     Of  the  punishments  which  a  legislative  assembly  may  inflict  266-268 

1.  Fine             ......  266 

2.  Imprisonment     .             .             .             .             .  267 

3.  Reprimand  ......  268 

4.  Expulsion           .....  268 
V.     In  what  manner  and  to  what  extent  the  incidental  powers  of 

legislative  assemblies  in  the  United   States  have  been 

affected  by  constitutional  and  legal  provisions    .            .  268-272 

Art.  I.   Incidental  powers  relating  to  members   .  269 
n.   Incidental   powers   relating   to  persons  not 

members    .            .            .            .            .  270 


CONTENTS.  XUt 


PART    FOURTH. 

OF  THE    POWERS   AND  FUNCTIONS   OF  A   LEGISLATIVE   ASSEMBLY 

AS    SUCH. 


CHAPTER    FIRST. 

OF   THE    GENERAL    POWERS    OF    A    LEGISLATIVE    ASSEMBLY    IX    THE    MAKING 

OF    LAWS 

Section  I.   Powers  of  the  assembly  as  an  aggregate  body  .  .     277-283 

1.  Legislative  powers  of  parliament     .        .  .  277 

2.  Legislative  powers  as  restricted  by  constitutional  pro- 

visions in  the  United  States  .  .  .  281 

II.   Powers  of  the  members  individually  .  .  .  283-288 


CHAPTER    SECOND. 

of  the  relation  of  the  different  branches  of  the  legislative 
department  to  one  another. 

Section  I.    Of  the  good  correspondence  and  harmony  which  ought  to 

prevail  between  the  dillerent  branches       .  .  289 

II.    Of  the  duty  of  each  branch  to  facilitate  the  proceedings  of 

the  others    .......  290 

HI.    Of  the  interference  of  any  of  the  branches  in  the  proceed- 
ings of  the  others    ......  291 


CHAPTER   THIRD. 

of  the  evidence  and  information  on  which  parliamentary 
proceedings  are  founded. 

Section  I.    Of  the  nature  of  the  evidence  upon  which  a  parliamentary 

proceeding  may  be  founded  ....  293 

II.    How  the  diilerent  kinds  of  evidence  are  appUcable        .  293 

HI.    Of  the  evidence  of  common  fame       .  .  .  294 

IV.    Of  the  statements  of  members      .  .  .  294 

V.    Of  other  sources  of  evidence  .  W5 


XX 


COXTEXTS. 


CHAPTER   FOUETH. 

OF    THE    FOKMS    IN    "WUICn    THE   POWER    OF    LEGISLATION    13    EXERCISED    BY 

A    LEGISLATIVE    ASSEMBLY. 

Section  I.    Classification  and  description  of  tlie  different  kinds  of  bills  .  297-302 

1.  Public  bills             .....  299 

2.  Private  bills    ......  300 

3.  Judicial  bills          .....  301 
n.   Of  certain  classes  of  laws  which  are  withheld  from  the  legis- 
lative authoritj^,  or  regulated  by  constitutional  provisions  302-304 


CHAPTER    FIFTH. 

OF    THE   RULES    OR    LAWS    BY   WHICH    THE    PROCEEDINGS    OF    A   LEGISLATIVE 

ASSEMBLY  ARE   REGULATED. 


Section  I. 

General  view  of  the  forms  and  rules  of 

proceeding 

304 

n. 

Sources  of  parliamentary  rules    . 

•                        •                        • 

306 

-311 

I.   Usages 

•                        •                        • 

306 

n.   Resolutions            .            . 

•                        •                        • 

306 

ni.   Precedents 

»                        •                        • 

307 

IV.   Orders      . 

•                        •                        • 

308 

1.    Standing  orders 

•                       •                        • 

309 

2.    Sessional  orders 

•                        •                        • 

309 

3.   Occasional  orders 

•                        •                        • 

310 

V.   StaUites     . 

•                        •                        • 

310 

m. 

Of  the  rules  by  which  legislative  assemblies  in  this  country 

are  governed 

•                        •                        • 

311 

-313 

IV. 

Of  the  forms  in  which  the  proceedings 

of  a  legislative  assem- 

bly  are  expressed    . 

•                        •                        • 

313 

--3 16 

1.  Motion  or  vote 

*                        •                        • 

313 

2.    Order 

*                        •                        • 

314 

3.   Resolution 

•                       •                       • 

314 

4.  Address 

•                       •                        • 

315 

CONTENTS.  XXI 


PART    FIFTH. 

OF   COMMUNICATIONS   BETWEEN  THE   DIFFERENT'  BRANCHES   OF   A 

LEGISLATIVE   BODY,   AND   BETWEEN   THEM   OR  EITHER 

OF  THEM   AND    OTHER   BODIES   OF   PERSONS. 


CHAPTER  FIRST. 

OF   COMMITNICATIONS   BETWEEN   THE   TWO   BRANCHES. 

Section  I.    Communications  by  message 320-327 

II.    Communications  by  conference 327-347 

III.    Commuuications  by  committees 347 

CHAPTER  SECOND. 

OF   COMMUNICATIONS   BETWEEN   THE   TAVO   BRANCHES,   OR   EITHER   OF   THEM 

AND   THE    EXECUTIVE. 

Section  I.    Of  communications  from  the  sovereign  to  the  two  houses  or 

either  of  them  ........     348-357 

I.    Communications  by  the  sovereign  in  person,  or  by 

commissioners 349 

II.    Communications  of  the  sovereign  by  message       .  351 

n.    Of  communications  from  the  two  houses,  or  either  of  them, 

to  the  sovereign         ........     357-360 


o 


CHAPTER  THIRD. 

of   accounts,  papers,  returns,  presented   in   pursuance   of  OR- 
DERS,  OR   IN   obedience    TO    ACTS    OF    PARLIAMENT      .  .  .      3G0-369 


CHAPTER  FOURTH. 

of    witnesses,  and   their   attendance   and    EXAMINATION   BEFORE   EITHER 

HOUSE   OR    COMMITTEES. 

Section  I.    Of  the  occasions  on  which  an  examination  of  witnesses  may 

take  place '^'^^ 

n.    Of  the  several  modes  of  obtaining  or  compelling  the  attend- 
ance of  witnesses      ........     370-379 

lU.    Of  the  examination  of  witnesses        ...  •         379-395 


XXll  CONTENTS. 

Section  IV.    Of  the  pridleges  of  witnesses 395-400 

Art.  I.   Freedom  from  arrest,  in  coming,  staying,  and 

returning 395 

1.  Protection 395 

2.  Discharge  from  arrest       .         .        .  396 
n.   Protection  of  a  witness  against  the  conse- 
quences of  the  disclosures  made  by  him  in 

his  evidence 397 

III.  Protection  against  abuse  and  insult,  personal 
violence,  and  injury  actual  or  threatened 
to  pei-son  or  property         .         .         .         .  399 

V.    Of  misconduct  on  the  part  of  witnesses,  or  other  persons, 

relative  to  their  attendance  and  examination  .         .     400-404 

VI.    Of  other  matters  relating  to  witnesses  and  their  examination     404-406 


CHAPTER  FIFTH. 

OF    HEARIJS^G    PARTIES    INTERESTED. 

Section  I.   Rights  of  members  to  their  seats 410 

n.   Infliction  of  punishment     .......  410 

in.  Inquiries  respecting  the  conduct  of  public  officers  .        .  411 

IV.   Bills  of  attainder  and  of  pains  and  penalties      ...  411 

V.  Private  bills 411 

VI.  Public  blUs,  and  other  measures  of  a  public  character        .  412 

CHAPTER  SIXTH. 

PUBLIC  OFFICERS  SUBJECT  TO  THE  ORDER  OF  THE  ASSEMBLT. 

Section  I.    Returning  officers 417 

n.   Prosecution  and  punishment  of  offenders  ....  418-425 

in.   Publishingr  or  distributinfic  the  orders  of  the  house          .         .  425 

IV.   Rendering  assistance  to  the  officers  of  the  house        .         .  426 
V.   Preservation  of  the  peace  in  the  place  where  the  parliament 

is  sitting 428-430 

VT.   Right  of  the  house  of  lords  to  call  on  the  judges  to  give  their 

opinions  on  questions  of  law      ......  430 

Vn.  Right  to  refer  matters  to  public  officers      ....  43! 

CHAPTER  SEVENTH. 

OF   PETITIONS. 

Section  I.    Of  the  right  of  petition 432-439 

H.    Of  petitions  as  to  their  form 439-449 

AuT.  I.   As  to  the  material  upon  which,  and  the  manner 

in  which,  a  petition  Is  to  be  written          .         .  439 


CONTENTS.  XXIU 

AuT.  n.   As  to  the  several  parts  of  a  petition         .  441 

III.  As  to  the  signing  of  a  petition     .        .        .  443 

IV.  As  to  matters  extraneous  to  a  petition     .  447 
Section  III,    Of  petitions  as  to  their  substance 449-454 

IV.    Of  the  presentation  and  reading  of  petitions           .         .  454-4G5 
V.    Of  certain  classes  of  petitions,  in  reference  to  which  the 

preliminary  proceedings  are  peculiar     ....  4G5-471 

Art.  I.    Election  petitions 466 

'  11.   Tetitions  relating  to  or  aifecting  an  election 

case 467 

III.  Petitions  charging  or  implicating  members  468 

IV.  Petitions  for  relief  out  of  the  public  money  468 
V.   Petitions  against  tax  bills     ....  469 

VI.   Private  petitions  and  previous  petitions  .  470 
VI.    Of  the  present  practice  with  regard  to  the  presentation  of 

petitions 471-476 

VII.    Of  subsequent  proceedings  on  petitions          ...  476 


PART    SIXTH. 

OF   THE  FORMS   AND   METHODS   OF  PROCEEDING   15  A  LEGISLATIVE 

ASSEMBLY. 


FIRST  DIVISION. 

MOTIONS. 


CHAPTER    FIRST. 


OF   MOTIONS  IN   GENERAL. 


Section  I.   Introductory •    481—485 

II.   Notice  of  motion 485-491 

III.   ]Makin2  and  withdrawal  of  motions        .        .     ■    .  .  491 


o 


CHAPTER    SECOND. 

OF   MOTIONS   CONSIDERED  "WITH  REFERENCE   TO  THEIR   SUBSTANCE   .      502-509 

CHAPTER  THIRD. 

OF   MOl-lONS   CONSIDERED  WITH  REFERENCE   TO    THEIR   jrORM    .  .      509-5JS 


xxiv  CONTENTS. 


CHAPTER    FOURTH. 

OF     MOTIONS    COXSIDERED     WITH    REFERKNCE    TO     THE    TIME    WHEN 

THEY   ARE    MADE 513-515 

CHAPTER   FIFTH. 

OF    MOTIONS   FOR   THE   DISPOSITION   OF    OTHER   BXreiNESS. 

Section  I.    Of  motions  to  amend 51G-537 

Art.  I.    General  rules  apjilicable  to  amendments          .  517 
H.   Amendments  considered  ■with  reference  to  their 

substance         .         .         .         .         .         .         .  519 

HI.   Amendments  considered  with  reference  to  their 

form 523 

1.  Ajnendments  by  leaving  out  words       .  523 

2.  Amendments  by  inserting  words      .         .  526 

3.  Amendments  by  leaving  out  and  inserting  526 

4.  Division  of  a  proposition  into  two  or  more 

questions 528 

5.  Filling  blanks 531 

6,  7,  8,  9.  Addition,  separation,  transposition,  num- 
bering of  paragraphs,  formal  words      .  533 

TV,    Of  the  congruity  of  amendments  as  required  by 

rule  in  this  country 533 

H.    Of  motions  to  postpone 537-543 

1.  Effect  of  an  order  for  postponement,  on 

the  day  on  which  it  is  made  .         .  638 

2.  Effect  of,  between  the  day  of  the  making 

of  the  order  and  the  day  assigned        .  538 

3.  Effect  of,  on  the  day  assigned      .        .  539 

4.  Effect  of,  after  the  day  assigned       .        .  541 

5.  Of  the  effect  of  the  m.oticn  to  postpone, 

according  to  parliamentary  usage  in 

this  country 542 

HI.    Of  motions  to  commit 543 

IV.    Of  motions  to  suppress 544-562 

Art.  I.   Adjournment 544 

II.    Orders  of  the  day       ......  547 

HI.  Previous  question 549 

1.  Of  the  previous  question  according  to  the 

conmion  parliamentary  law  .         .  550 

2.  Of  the  previous  question  as  used  by  legis- 

lative assemblies  in  the  United  States  .  555 

IV.   Amendment 561 

CHAPTER   SIXTH. 

OF  THE  ORDER,  SUCCESSION,  AND  PRECEDENCE  OF  MOTIONS. 

Kkction  I.    Of  motions  relating  to  and  connected  with  the  question  pending    563-581 


CONTENTS.  XXV 

Art.  L    Subsidiary  questions 5C3 

II.   Incidental  questions 5G7 

1.  Questions  of  order      ....  507 

2.  Keadinji  papers 572 

3.  Witlidrawal  of  a  motion      .         .         .  574 

4.  Suspension  of  a  rule      ....  575 

5.  Of  taking  the  question  by  yeas  and  nays  579 
Section  II.    Of  motions  related  to,  or  connected  with,  some  suly'ect  which 

is  deemed  to  be  of  jjaramount  importance        .        .        .     581-589 

1.  Questions  of  privilege          ...  581 

2.  Privileged  (piestions        ....  585 
in.    Of  motions  relating  to  the  general  course  and  order  of  pro- 
ceeding     589 

IV.  Of  the  order,  succession,  and  precedence,  of  motions,  as  es- 
tablished by  rule  in  this  country       .....  590 

V.   Of  the  general  course  or  order  of  business  in  a  legislative 

assembly 592 


SECOND    DIVISION 

ORDER   IX    DEBATE. 


CHAPTER  FIRST. 

WHAT   CONSTITUTES   A  DEBATE,  AND   HEREIN   OK   THE   MEMBERS   "WHO   ARE  TO 
SPEAK,   AND    OF    THEIR    PERSONAL   DEPORTMENT   "WHILE   SPEAKING. 

Section  I.    Of  the  grounds  upon  which  preferences  are  allowed  in  assign- 
ing the  floor  to  particular  members   .....     599-604 
Exc.  I.    The  original  mover  of  a  proposition  on  its  being 

first  debated 599 

II.   A  ne"w  member,  on  his  first  rising  to  address 

the  house 601 

III.  The  member  who  rose  last  to  speak,  when  the 

debate  was  adjourned  ....  602 

IV.  Members  entitled  to  the  floor  on  grounds  of 

preference,  irrespective    of   their  peculiar 

character 602 

n.  Personal  deportment  of  members  in  speaking    .        .        .         604-606 

CHAPTER  SECOND. 

OF    THE   RULE    THAT    NO   MEMBER   IS  TO    SPEAK,   UNLESS    TO    A    QUES- 
TION  ALREADY   PENDING    OR    TO    INTRODUCE    A   QUESTION      .  .      606-615 

C 


XX  VT  CONTENTS. 


CHAPTER    THIRD. 

OF     THE     RULE     THAT    NO    MEMBER     IS     TO    SPEAK   MORE    THAN   ONCE   TO    THJE 

SAME    QUESTION. 

Section  I.    What  is  understood  by  a  speaking 616 

n.   Wliat  is  understood  by  the  same  question  .        ,        .        618-625 

CHAPTER  FOURTH. 

OF    THE    RULE    THAT   A   QUESTION    IS     OPEN    FOR   DEBATE    UNTIL   IT 

IS   FULLY  PUT  ON   BOTH   SIDES 626 

CHAPTER   FIFTH. 

OF  THE  RULES  RELATING  TO  RELEVANCY  IN  DEBATE. 

Section  I.   As  to  the  question  itself 628-632 

II.   As  to  the  manner  of  speaking  to  the  question   .        ,        .        632-638 

CHAPTER    SIXTH. 

OF   THE   RULES    RELATING   TO    THE   SOURCES    FROM   WHICH    THE    STATEMENTS 
INTRODUCED    BY   A    MEMBER    IN    DEBATE    ARE    DERIVED. 

Section  I.    Statements  made  by  members  of  their  own  knowledge  or  belief  639 
H.   Matter  introduced  from  the  journals  or  papers  of  the  house,  or 

other  public  records 640 

IH.   Matter  introduced  from  extraneous  sources        ...  641-645 


CHAPTER    SEVENTH. 

of  the  RULES  RELATING  TO  THE  PRESERVATION  OF  ORDER,  DECENCY,  AND 

HARMONY  AMONG  THE  MEMBERS. 

Section  I.    As  to  the  manner  in  which  the  individual  members  are  to  be 

designated 646 

n.   As  to  the  exemption  of  members  from  being  personally  ad- 
dressed or  appealed  to,  in  debate,  by  other  members          .  647 
HI.    As  to  the  exemption  of  members  from  being  personally  re- 
marked upon,  or,  in   other  words,  as   to   j)ersonalIty  in 
debate       648-657 


CHAPTER   EIGHTH. 

of  the  rules  RELATING  TO  THE  PRESERVATION  OF  THE  HAR- 
MONY AND  INDEPENDENCE  OF  THE  SEVERAL  BRANCHES  OF  THE 
LEGISLATURE 658-666 


CONTENTS.  XXVll 

CHAPTER  NINTH. 

DF   THE   RULES   BELATLNG   TO   KEGULARITY   OF   PROCEEDING       .  .      CG6-67] 

CHAPTER  TENTH. 

OF  THE  RULES  RELATING  TO  THE   RESPECT  DUE  FROM  THE   MEMBERS 
TO  THE  HOUSE  TO  WHICH  THEY  BELONG,  —  TO  ITS  POWERS,  ACTS, 

AND    PROCEEDINGS, AND    TO    THE    GOVERNMENT   AND    LAWS    OF 

THE   COUNTRY G71-G74 

CHAPTER   ELEVENTH. 

OF    PROCEEDINGS    WITH    REFERENCE    TO    DISORDERLY    OR    UNPARLIAMENTARY 
WORDS,  OR  IRREGULARITY  IN   DEBATE. 

Section  I.    Of  proceedings  to  prevent  or  correct  irregularity  in  debate  .     675-682 
H.    Of  proceedings  to  compel  a  member  to  explain,  retract,  or 

apologize,  for  disorderly  words  ......     682-686 

Art  I.    As  to  the  time  when  the  complaint  for  disor- 
derly ■words  must  be  made     ....  683 

H.  As  to  the  mode  of  proceeding  for  obtaining  the 
order  of  the  house  to  tjike  down  the  words, 
and  taking  them  down  and  verifying  them    .  684 

HI.    As  to  subsequent  proceedings  ....  686 

CHAPTER    TWELFTH. 

rules     for     the    conduct    of   MEMBERS    PRESENT    IN   THE     HOUSE 

DURING   A   DEBATE 687 


THIRD    DIVISION. 

OF   ASCERTAIXING    THE    SENSE    OF    THE    ASSEMBLY    IN    REFERENCE    TO 

ANY    QUESTION    BEFOKE    IT. 


CHAPTER    FIRST. 

OF   THE   RIGHT   AND   DUTY   OF   MEMBERS   TO   VOTE       ....      692-694 

CHAPTER   SECOND. 

OF   THE   DIFFERENT   MODES   OF   TAKING    A   QUESTION. 

Section  I.    Of  taking  the  sense  of  the  house  by  their  conmion  consent  695 


XXVIU  CONTENTS. 

Section  II.    Of  taking  tlic  sense  of  tlie  house  by  tlie  voices    .        .        .     696-698 . 

III.  Of  taking  the  sense  of  the  house  by  a  division         .        .         698-705 

IV.  Of  the  (liflTerences  between  the  two  houses  in  the  mode  of 

taking  the  question 705-707 

V.   Of  some  usages  and  methods  in  the  taking  of  questions, 

■which  are  peculiar  to  this  country 707 

CHArTER    TlilRD. 

OF    THE    QUESTIOX    THUS   TAKEN 708-711 

CHAPTER    FOURTH. 

OF   xnE   DISALLOWANCE   OH   ADDITION   OF   VOTES. 

Section  I.    Of  the  allowance  of  votes  refused 712 

n.    Of  the  disallowance  of  votes  received       ....         712-718 


PART     SEVENTH. 

OF  COMMITTEES   AND   THEIR   FUNCTIONS. 


FIRST    DIVISION. 

SELECT      COMJIITTEES. 


CHAPTER    FIRST. 

OF   THE   DIFFERENT   KINDS    OF    SELECT   COMMITTEES             .          .          .  724 

CHAPTER    SECOND. 

APPOINTMENT    OF    SELECT    COMMITTEES. 

Section  I.   As  to  who  may  be  of  a  committee 726 

II.    As  to  the  number  of  members 727 

III.  As  to  the  time  of  appointment 728 

IV.  As  to  the  manner  of  appointment  of  a  select  committee   .         729-736 

Akt.  I.    Ai)pointmcnt  of  a  select  committee  on  motion     .  729 

II.    AppointmcMit  of  a  select  committee  by  ballot       .  733 

III.    Other  modes  of  appointment       ....  735 


CONTENTS.  XXIX 


CHAPTER   THIRD. 

POWER    AND    AUTHORITY    OF    SELKCT    COMMITTEES. 

Section  I.  Of  the  powers  Tvlth  which  committees  are  invested,  to  enable 
them  to  discharge  the  duties  of  their  appointment;  or,  in 
other  Avords,  of  tiie  incidental  powers  of  committees  .         .     737-740 
Art.  I.   As  to  the  time  of  sitting        ....  737 

11.   As  to  the  place  of  meeting        ....  739 

III.  As  to  sending  for  persons,  papers,  and  records  739 

IV.  As  to  reporting  from  time  to  time      .         .         .  740 
D.    Of  the  powers  of  committees  as  to  the  subjects  referred  to 

them 741 

CHAPTER    FOURTH. 

FORMS"  OF    PROCEEDINGS    IN    SELECT    COMMITTEES       ....      742-745 

CHAPTER  FIFTH. 

OF    rNSTRTJCTIONS    TO   COMMITTEES 746 

CHAPTER    SIXTH. 

OF   OTHER   INTERMEDIATE   PROCEEDINGS    IN   THE   HOUSE   "WITH   REF- 
ERENCE TO  COMMITTEES     ...  748 

CHAPTER   SEVENTH. 

OF   THE    REPORT 749-755 

CHAPTER    EIGHTH. 

OF   MAKING   THE  REPORT,  AND   PROCEEDINGS   THEREON       .  .  .      755-761 


SECOND    DIVISION. 

COMMITTEES     OF     THE     WHOLE. 


CHAPTER    FIRST. 

APPOINTMENT    OF    A   COMMITTEE    OF    THE    -WHOLE        ....  764 

C* 


XXX 


CONTENTS. 


CHAPTER    SECOND. 

SITTING    OF    A    COMMITTEE    OF   THE    WHOLE 764 

CHAPTER    THIRD. 

CHAIRMAN    AND    CLERK    OF    THE    COMMITTEE 765-767 

CHAPTER    FOURTH. 

DUTIES  OF  THE  SPEAKER  AND  OTHER  OFFICERS  OF  THE  HOUSE  WHILE 

THE    HOUSE   IS    IN    COMMITTEE   OF  THE  WHOLE         ....      767-769 

CHAPTER    FIFTH. 

PROCEEDINGS    ON    GOING    INTO    A   COMMITTEE    OF    THE   WHOLE  .      769-771 

CHAPTER    SIXTH. 

OF    THE    PROCEEDINGS    IN   COMMITTEE    OF    THE    WHOLE. 

Section  I.  Quorum 772 

II.  Autliority  of  the  committee 772 

IH.  Making  motions,  and  speaking  in  committee  of  the  -whole      .  773-776 

IV.  Formal  motions 776 

CHAPTER    SEVENTH. 

OF   THE    REPORTS    OF    COMMITTEES    OF    THE   WHOLE. 

Section  I.  Resolutions    .        .        .        .        .        .        .        .        .        .  778 

II.  Direction  to  move  the  house  or  to  state  a  fact    .        .        .  779 

III.  Special  reports 779 

IV.  Report  of  the  subject-matter  referred  to  the  committee      .  780 

CHAPTER   EIGHTH. 

OF   MAKING   THE   REPORT,   AND   PROCEEDINGS   THEREON       .  .  .  780 

CHAPTER    NINTH. 

OF    SOME    PARTICULAR   COMMITTEES 781-788 


THIRD    DIVISION. 


JOINT    COMMITTEES    . 


.     789-791 


CONTENTS.  XXXI 


PART    EIGHTH. 


OF    TUE    PASSING    OF    BILLS. 


HISTORY  OF   THE   PRESENT   FORM   OF   STATUTES,   AND   THE   MODE   OF 

PASSING    THEM 795-798 


FIRST    DIVISION. 

PUBLIC     BILLS. 


CHAPTER    FIRST. 

INTRODUCTORY 800-804 

CHAPTER    SECOND. 

OF  THE  INTRODUCTION  OF  THE  SUBJECT  OF  A  BILL  INTO  THE  HOUSE. 

Section  I.  Petition 804 

II.  Address  or  message 804 

III.  Reading  of  some  document  or  message          ....  805 

IV.  Motion 806 

CHAPTER  THIRD.      . 

OF   THE   intermediate    PROCEEDINGS    BETWEEN   THE   INTRODUCTION   OF   THE 
SUBJECT   AND    THE   INTRODUCTION   OF   A   BILL. 

Section  I.   Debates  of  the  house 806 

n.   Heads ;  articles ;  resolutions 808 

III.  Committee 808-811 

CHAPTER   FOURTH. 

of   the   AUTHORITY   FOR   THE   INTRODUCTION   OF   A   BILL. 

Section  I.   Leave  or  order  to  bring  in  a  bill 811-814 

II.   Committee  to  prepare  and  bring  in  a  bill ....  814 


XXXU  CONTENTS. 

CHAPTER  FIFTH. 

OF   THE   PREPARATION   OR   DRAWING   AXD   THE    DIFFERENT   PARTS   OF   A   BILL. 

Section  T.  Title 816-818 

II.  rreamble 818 

III.  Statement  of  tlie  enacting  autliority 819 

IV.  Purview  or  body  of  tlie  act       .        .        .        .        .        .  820 

V.  Provisos 821 

VI.    Schedules 822 

VII.   Date 822 

VHL   Of  the  general  preparation  of  a  bill 823-826 

CHAPTER   SIXTH. 

OF   THE   PRESENTATION   AND   RECEPTION   OF   A   BILL  ....      826-829 

CHAPTER   SEVENTH. 

OF   THE   SEVERAL   STAGES   THROUGH   WHICH  A   BILL   PASSES  .      829-833 

CHAPTER   EIGHTH. 

OF   THE   FIRST   READING    OF   A   BILL  AND   ORDER  FOR   SECOND   .  .      834-840 

CHAPTER  NINTH. 

OP   THE  SECOND   READING  AND   ORDER   FOR  COMMITMENT  .  .  .      840-843 

CHAPTER  TENTH. 

OF  INSTRUCTIONS   TO   COMMITTEES 843-845 

CHAPTER  ELEVENTH. 

OF   COMMITMENT   AND   AMENDMENT 845-854 

CHAPTER  TWELFTH. 

OP  THE   REPORT   OF   THE   COMMITTEE,   AND   PROCEEDINGS   THEREON        855  -858 

CHAPTER  TIHRTEENTH. 

OP   THE    ENGROSSMENT    AND    THIRD   READING 858-864 

CHAPTER  FOURTEENTH. 

OP   THE   PASSING 864 


CONTENTS.  •  XXXIU 

CHAPTER   FIFTEENTH. 

OP    AMENDMENTS   BETWEEN   THE   TWO   HOUSES 865-883 

CHAPTER   SIXTEENTH. 

OP   THE   AUTHENTICATION   OP   BILLS   BETWEEN   THE   TWO    HOUSES     .      883-885 

CHAPTER  SEVENTEENTH. 

OF    COMMUNICATIONS    BETWEEN     THE     TWO     HOUSES    RELATIVE   TO 

THE   PASSING   OF   BILLS 886-888 

CHAPTER    EIGHTEENTH. 

OF  BILLS  WHICH  ARE  REQUIRED  TO  BE  COMMENCED  IN  ONE  HOUSE  IN 

PREFERENCE    TO    THE    OTHER 889-892 

CHAPTER    NINETEENTH. 

OP  THE  RULE  WHICH  PRECLUDES  THE  SAME  QUESTION  FROM  BEING 
A  SECOND  TIME  PRESENTED  DURING  THE  SAME  SESSION  IN  ITS 
APPLICATION   TO   BILLS. 

Section  I.   Of  the  application  of  the  rule  in  general      ....     894-896 
n.   Of  the  application  of  the  rule,  when  leave  has  been  given  or 
refused,  or  an  order  made  or  rejected,  to  prepare  and  bring 

in  a  bill  for  a  particular  purpose 896 

TIT.    Of  the  application  of  the  rule  whilst  a  biU  is  pending        .  897 

IV.    Of  the  application  of  the  rule  when  a  bill  has  been  rejected  .  898 

V.    Of  the  application  of  the  rule  when  a  bill  has  been  passed  899 
VI.    Of  the  application  of  the  rule  to  the  different  stages  of  a  bill 

and  to  amendments 901 

CHAPTER    TWENTIETH. 

op    some    particular    proceedings,    with    reference    to    bills,   WHICH 
ARE    out    op    THE    ORDINARY   COURSE. 

Section  I.  Withdrawal 902-906 

II.  Rejection 907 

ni.  Laying  aside •        •  ^08 

IV.  Dropping 909 

CHAPTER   TWENTY-FIRST. 
df  communications  between  the  two  houses  relative  to  the 

REASONS    or    grounds    FOR   THE   PASSING    OF    BILLS      .  .  •      910-914 


XXXIV  COITTENTS. 


CHAPTER  TWENTY-SECOND. 

OF   THE  ROTAL  ASSENT,  OR   APPROVAL  BY  THE  EXECUTIVE        .  .      914-925 

CHAPTER   TWENTY-THIRD. 

OF  SEVERAL  MISCELLANEOUS  MATTERS   CONNECTED  "WITH  THE  PASS- 
ING OF  BILLS 926-932 


SECOND  DIVISION. 

PRIVATE   BILLS. 


CHAPTER   FIRST 

OF    THE    STANDING    ORDERS,   AND    PROCEEDINGS    PECULIAR    TO    THE    PASSING 

OF  PRIVATE    BILLS. 

Section  I.  Notices 936 

n.   Parliamentary  agents 937 

III.  Private  bill  office 938 

IV.  Examiners  of  petitions 938 

V.   Standing  orders  committee 939 

VI.    Conmiittee  of  selection 939 

Vn.   Chairman  of  the  committee  of  ways  and  means  ;  counsel  to 

Mr.  Speaker ;  government  boards 939 

VUL   Time  for  proceeding  with  private  bills        ....  940 

IX.   Conducting  of  the  proceedings 940 

X.   Time  for  presenting  petitions 941 

XL  Private  bills  not  to  be  brought  in,  but  upon  petition      .        .  941 


CHAPTER    SECOND. 

OF  THE  DEPOSIT,  PRESENTATION,  AND  REFERENCE  OF  THE  PETITION, 

AND   PROCEEDINGS  THEREON 942-947 


CHAPTER  THIRD. 

BRINGING  IN   AND  FIRST   AND   SECOND   READINGS  OF  PRIVATE   BILLS      947-949 


CONTENTS.  XXXV 

CHAPTER  FOURTH. 

COMMITMENT,   AND    PROCEEDINGS    IN   COMMITTEE. 

Section  L   Of  the  constitution  of  the  committees  on  private  bills,  and  of 

their  proceedings  in  unopposed  bills 949-956 

n.    Of  the  proceedings  of  committees  on  opposed  bills    .        .         956-961 
in.    Of  the  duties  of  the  committee  as  to  reporting  their  proceed- 
ings     


961-963 


CHAPTER   FIFTH. 

OF  THE  REPORT  OF  THE  COMMITTEE,  AND  PROCEEDINGS  THEREON; 
RECOMMITMENT  ;  THIRD  READING ;  PASSING ;  AMENDMENTS  BE- 
TWEEN  THE   TWO   HOUSES 963-967 


CHAPTER    SIXTH. 

DIFFERENCES    IN    THE    MODES   OF   PROCEEDING    BETWEEN   THE    TWO 

HOUSES 967-97*> 

CHAPTER    SEVENTH. 

OP  PRIVATE   BILLS   AFTER   RECEIVING   THE   ROYAL  ASSENT;   AND   OF 

FEES   AND   COSTS 973-97 


PART    NINTH. 

IMPEACHMENT 979-989 


APPENDIX. 

I.   Of  the  continuity  and  permanence  of  the  senate  of  the  United 

States 993 

H.   Writ  for  the  election  of  the  members  of  the  house  of  commons        .     993-995 

The  writ  to  the  sheriff,  on  a  general  election        •        .        •  993 

HI.    Of  the  liability  of  returning  officers 99o 

TV.   Origin  of  the  majority  principle 996 

V.  Return  of  a  writ  of  election 998 

Indenture  of  return  for  a  county ^98 


XXXVl  CONTENTS. 

VI.    Speaker's  warrant .  999 

1.  Copy  of  the  warrant  issued  In  Duane's  case.    J.  of  S. 

m.  60 999 

2.  Copy  of  the  warrant  issued  by  the  speaker  of  the  house 

of  commons  in  the  case  of  the  sheriff  of  Middlesex. 

May,  72 1000 

3.  Copy  of  summons  for  witnesses  in  the  house  of  repre- 

sentatives of  the  United  States         ....  1000 

VU.   The  speaker's  prayer  during  the  session          ....  1001 

Vin.   Bill  passed  by  the  miscounting  of  votes 1002 

IX.   Taking  of  the  yeas  and  nays 1003 

X.   Freedom  of  speech  and  debate 1004 

XI.   Extract  from  President  Polk's  message,  declining  to  furnish 

papers 1004 

Xn.   Division  of  a  question 1005 

Xm.   Appeal  from  the  speaker's  decision  in  the  house  of  commons     .    1006-1008 

XIV.   Appointment  of  committees '  1008 

XV.    Of  grand  committees  and  committees  of  the  whole  house  .        .     1009-1018 

XVL    Amendments  between  the  two  houses 1019-1024 

The  act  for  preventing  occasional  conformity    .        .  1019 

INDEX                                        1027 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE   ASSEMBLIES. 


.       .  PRELIMINARY. 

1.  The  political  science  of  modern  times,  in  its  analysis  of  the 
different  functions  of  civil  government,  under  whatever  name  or 
form  they  may  be  exercised,  has  arranged  them  all  in  three  grand 
divisions,  denominated  the  legislative,  the  executive,  and  the  judi- 
cial. In  all  modern  constitutional  governments,  each  of  these  classes 
of  functions  is  appropriated  to  a  separate  and  distinct  department, 
which  is  intended  to  be,  and  to  a  greater  or  less  extent  is,  practically 
independent  of  either,  or  both  of  the  others.^  The  most  important 
of  these  departments,  both  because  of  the  nature  of  its  functions, 
and  because  it  is  necessarily  the  depositary  of  so  much  of  the  abso- 
lute power  of  the  people,  as  they  see  fit  to  intrust  to  their  govern- 
ment, and  do  not  confer  upon  other  departments,  is  the  legislative. 

2.  The  department  of  legislation,  in  the  greater  number  of  mod- 
em States,  and  in  every  one  of  the  States  composing  the  American 
Union,  as  well  as  in  the  government  of  the  Union  itself,  consists  of 
two  separate  and  distinct  branches,  possessing  independent  and 

1  The  separation  has  been  deemed  so  es-  In  Maine,  the  constitution  of  which  contains 

eential  in  this  country,  that  it  has  been  pro-  the  latter  provision,  it  has  been  held,  on  that 

vided  for,  in  express  terms,  in  the  constitu-  ground,  that  the  office  of  justice  of  the  peace 

tions  of  many  of  the  States ;  and  several  of  is  incompatible  with  that  of  sheriff,  deputy 

them  declare  also  not  only  that  the  departs  sheriff,  or  coroner.     See    Chapman  v.    Shaw, 

ments  shall  be  separate,  but  that  no  person  or  Greenleaf 's  Reports,  III.  372 ;  Opinion  of  th« 

persons,  belonging  to  one,  shall  exercise  any  Justices,  etc.,  Same,  III.  484 ;  and  Bamford  v. 

of  the  powers    belonging   to    either  of  the  J/e/vt'n,  Same,  VII.  14. 
others,  except  in  cases  expressly  permitted. 

1  (1) 


2  LEGISLATIVE    ASSEMBLIES. 

r-  c  I        ^  , 

codrdinate  powf  rs ;  both  of  which  must  concur  in  every  act  of 
,'^egislation ;  each  of  which  is  composed  of  a  sufficient  number  of 
rnembcrs  to  give  it  the  character  of  a  deliberative  assembly ;  and 
whose  concurrent  acts,  in  matters  of  legislation,  are  (with  two  or 
three  exceptions)  subject  to  a  negative,  either  absolute  or  qualified, 
on  the  part  of  the  executive  power. 

3.  Of  these  two  branches  in  the  legislatures  of  this  country, 
though  they  are  in  fact  equal  in  power  and  dignity,  the  one,  being 
a  smaller  and  more  select  body,  is  usually  regarded  as  the  upper 
house,  and  the  other,  consisting  of  a  larger  and  less  select  body 
of  members,  as  the  lower.  The  members  of  the  former,  commonly 
called  the  senate,  are  usually  required  to  possess  certain  peculiar 
qualifications,  as  to  age  and  residence ;  are  chosen  by  more  numer- 
ous constituencies,  and  sometimes  by  a  comparatively  select,  that 
is,  a  more  highly  qualified  body  of  electors ;  and  are  not  unfre- 
quently  elected  for  longer  terms  of  office.  The  members  of  the 
latter,  variously  known  as  representatives,  burgesses,  commons,  or 
delegates,  are  chosen  by  smaller  constituencies ;  sometimes,  by  a 
more  popular  suffrage,  that  is,  by  electors  of  less  qualifications ;  and 
often,  for  shorter  periods  of  official  duty.  There  are  States,  how- 
ever, in  which  the  qualifications  of  the  electors,  the  term  of  office, 
and  the  conditions  of  ehgibility,  are  precisely  the  same,  in  reference 
to  both  branches. 

4.  The  functions  of  the  upper  and  lower  houses,  though  abso- 
lutely the  same  in  matters  of  legislation,  (with  certain  exceptions 
which  wiU  be  adverted  to  hereafter,)  are,  in  some  of  the  States 
of  the  Union,  essentially  different  in  certain  respects,  in  which 
their  powers  have  been  specially  enlarged  or  restricted  by  the  fun- 
damental law ;  the  former,  for  example,  sometimes  exercising  the 
functions  of  an  executive  council,  as  in  the  federal  government,  or 
of  a  judicial  tribunal,  in  the  last  resort,  as  formerly  in  the  State  of 
New  York  ;  and  the  latter,  (not  unfrequently,  however,  in  conjunc- 
tion with  the  other,)  sometimes  electing  or  appointing  to  office, 
either  in  the  first  instance,  or,  in  the  case  of  a  failure  to  elect,  on 
the  part  of  electors,  whose  duty  it  is,  in  the  first  instance,  to  make 
certain  elections.  There  is  one  matter,  however,  within  the  usual 
and  ordinary  powers  of  the  two  branches,  in  reference  to  which 
their  functions  are  essentially  different,  namely,  the  impeachment 
and  trial  of  public  officers  for  official  misconduct,  in  which  the  of- 
fender is  impeached  or  accused  by  the  lower  house,  and  tried  and 
sentenced  by  the  upper. 

5.  From  a  general  view  of  some  of  the  characteristic  features 


LEGISLATIVE   ASSEMBLIES.  3 

of  the  legislative  assemblies  of  this  country,  it  is  manifest,  that  their 
original  type  is  to  be  found  in  the  parliament  of  Great  Britain ; 
upon  the  model  of  which  they  have  all  been  formed,  with  such  modi- 
fications and  changes,  as  have  been  found  necessary  to  adapt  them 
to  the  various  circumstances  and  wants  of  the  people.  The  most 
striking  of  these  differences  are,  that,  in  this  country,  both  branches 
are  elected  by  the  people  for  specified  terms,  and  that  the  members 
of  the  lower  house  (and  of  the  other  also,  either  wholly  or  in  part) 
are  apportioned  among  and  elected  by  their  several  constituencies, 
upon  the  principle  of  equality ;  ^  whereas,  in  England,  the  house 
of  lords  is  composed  of  members  who  are  not  elected  at  all,  but 
who  sit  as  members,  during  their  lives,  in  virtue  of  hereditary  or 
conferred  right,  as  the  nobility  or  temporal  lords,  or  of  their  ap- 
pointment to  high  dignities  in  the  church,  as  the  archbishops  and 
bishops,  or  lords  spiritual ;  and  the  members  of  the  house  of  com- 
mons, though  elected,  are  not  apportioned  among  the  several  con- 
stituencies and  elected  upon  the  principle  of  equality  of  represen- 
tation, but  chiefly  upon  the  principle  of  corporate  or  municipal 
right. 

6.  Besides  these  differences  between  the  British  parliament  and 
the  legislative  assembhes  of  the  United  States,  there  is  another  of 
not  less  importance,  namely,  that  the  existence  and  powers  of  the 
former  rest  only  upon  custom  and  tradition,  aided  by  occasional 
statute  provisions ;  whereas  the  latter  are  founded  in,  and  for  a 
great  part  regulated,  limited,  and  controlled  by,  written  fundamen- 
tal laws  or  constitutions. 

7.  There  is  still  another  difference,  not  inferior  perhaps  in  im- 
portance, which  is,  that  the  British  parliament  can  only  be  con- 
vened at  the  pleasure  of  the  sovereign,  who  is  invested  with  full 
power  both  to  convene  and  dissolve  it,  and  is  only  required  by  law 
not  to  suffer  a  longer  period  than  three  years  to  elapse  between  the 
dissolution  of  one  parliament  and  the  convening  of  another ;  while, 
in  the  several  governments  of  the  American  Union,  the  meetings, 
periods  of  existence,  and  manner  of  dissolution,  of  the  legislative 
assemblies,  are  all  provided  for  and  regulated  by  the  fundamental 
laws. 

8.  The  legislative  department,  however  carefully  separated  and 
kept  distinct  both  from  the  executive  and  judicial  departments,  and 
though  exercising  coordinate  and  independent  functions,  is  never- 
theless by  its  very  nature,  the  depositary  of  so  much  of  the  supreme 

»  Constitution  of  JIassachusetts,  Part  II.  Chap.  I.  Sect.  III. 


4  LEGISLATIVE    ASSEMBLIES. 

and  absolute  power  as  the  people  see  fit  to  embody  in  their  form 
of  government ;  for,  whilst  the  functions  of  the  executive  and  the 
judiciary  are  precisely  marked  out  by  fixed  laws  antecedently 
enacted,  and,  from  the  nature  of  those  powers,  do  not  admit  of 
any  enlargement  or  extension  by  their  own  act,  the  legislative 
department  may  control,  regulate,  and  limit  the  executive  and  the 
judiciary,  by  general  prospective  provisions  of  law,  and  may  also 
act  on  every  emergency,  not  otherwise  previously  provided  for, 
(whether  it  require  executive,  legislative,  or  judicial  interference,)  in 
virtue  of  the  supreme  legislative  power  with  which  it  is  intrusted. 

9.  In  this  country,  there  are  three  kinds  of  legislative  assemblies, 
namely,  first,  those  of  the  several  States  ;  second,  that  of  the  United 
States ;  and  third,  those  of  territories  not  yet  formed  into  States. 
The  legislatures  of  the  States  are  chosen  directly  by  the  people 
thereof,  and  are  the  depositaries  of  their  exclusive,  original,  sovereign 
power.  They  possess  all  the  legislative  authority  which  can  be 
exercised  within  their  respective  jurisdictions,  except  so  far  as  they 
are  restrained  therefrom  by  constitutional  enactment,  either  express 
or  implied  in  their  own  constitutions  or  in  that  of  the  United  States. 
These  are  equal  in  number,  of  course,  to  the  several  States.  The 
legislative  assembly  of  the  Union  denominated  the  Congress  of  the 
United  States,  is  one  of  derivative  and  Hmited  powers,  exercising 
only  those  functions  with  which  it  is  invested,  for  the  general  wel- 
fare, and  the  benefit  of  aU  the  States,  either  expressly,  or  by  neces- 
sary impHcation.  One  of  its  branches,  the  upper,  is  chosen  by  the 
legislatures  of  the  States  ;  its  existence  is  continued  and  perpetual ;  ^ 
the  other  branch  is  chosen  directly  by  the  people  of  the  respective 
States.^  The  Congress  of  the  United  States  also  exercises  exclu- 
sive legislation,  in  aU  cases  whatsoever,  within  the  District  of 
Columbia,  and  over  all  places  purchased  by  the  government  of  the 
United  States,  with  the  consent  of  the  States  in  which  the  same 
are  situated,  for  arsenals  and  other  public  works  of  a  like  character. 
The  only  remaining  class  of  legislative  assemblies  in  this  country 
consists  of  those  of  territories  subject  to  the  dominion  of  the  United 
States  and  not  yet  formed  into  States.  These  are  created  by  and 
depend  wholly  for  their  existence  upon  acts  of  Congress.  Terri- 
torial governments,  according  to  their  importance,  generally,  have 

1  Appendix,  I.  delegates  are  entitled  to  seats,  as  such,  after 

*  Senators  and  representatives  are  entitled  the  erection  of  the  territory,  for  which  they 

to  seats,  even  though  their  election  as  such  serve,  into  a  State,  so  long,  at  least,  as  any 

took  place  before  the  admission  of  their  State  part  of  their  original  constituency  remains. 

into  the  Union,  (Cong.  Globe,  IV.  134);  and  (Case  of  Paul  Fearing,     Clarke  &  Hall,  127.) 


LEGISLATIVE    ASSEMBLIES.  0 

a  legislature  consisting  either  of  a  single  branch  appointed  by  the 
president,  or  one  consisting  of  two  branches,  the  most  numerous  of 
which  is  chosen  by  the  people.  These  governments  are,  of  course, 
merely  temporary.  The  distinguishing  character  of  territorial  legis- 
latures is  that  all  their  acts  are  subject  to  the  approval  or  disap- 
proval of  Congress.  These  governments  differ  also,  in  another 
respect,  from  those  of  the  States ;  they  are  not  represented  at  aU  in 
the  senate  of  the  United  States ;  and  in  the  other  branch  only  by 
delegates,  who  have  no  right  of  voting  therein. 

10.  The  legislative  assemblies  of  Canada,  and  of  other  colonies 
and  provinces  of  Great  Britain,  which  appear  to  be  formed  and  con- 
ducted, even  more  closely  than  our  own,  upon  the  model  of  the 
British  parliament,  and  occasional  assemblies,  which  are  not  legis- 
lative in  their  character,  though  they  exercise  analogous  functions, 
such  as  constitutional  conventions  and  the  like,  are  not,  except  so 
far  as  they  are  governed  by  the  common  parliamentary  law,  em- 
braced within  the  plan  of  this  work. 

11.  The  laws  relating  to  the  election  and  constitution  of  these 
legislative  bodies ;  the  rules  by  which  they  are  governed  and  regu- 
lated ;  and  the  forms  and  methods  in  which  their  proceedings  are 
conducted,  constitute  a  peculiar  branch  of  jurisprudence ;  which, 
from  having  been  first  treated  of  with  reference  to  the  parliament 
of  Great  Britain,  is  denominated  parliamentary  law,  or  the  law  of 
parliament. 

12.  In  considering  the  various  topics  embraced  under  the  head 
of  parliamentary  law,  it  will  be  convenient  to  arrange  them  in  the 
following  order :  —  First,  Of  the  Election  of  the  Members  of  a 
Legislative  Assembly;  Second,  Of  its  Constitution;  Thied,  Of  the 
Privileg-es  and  Incidental  Powers  of  such  a  body ;  Fourth,  Of  its 
General  Poioers  and  Functions ;  Fifth,  Of  the  Communications 
which  take  place  between  the  different  Branches,  and  betiveen  them  or 
either  of  them,  and  the  Executive,  other  official  bodies  or  persons, 
individuals,  or  the  public  in  general ;  Sixth,  Of  the  Forms  and 
Methods  of  Proceeding ;  Seventh,  Of  Committees  and  their  Func- 
tions;  Eighth,  Of  the  Passing  of  Bills  ;   Ninth,   Of  Impeachment. 

1* 


LAW  AND  PRACTICE 


OP 


LEGISLATIVE   ASSEMBLIES. 


PART  FIEST. 


OF  THE  ELECTION  OF  THE  MEMBERS. 


LAW  AND  PRACTICE 


ov 


LEGISLATIVE   ASSEMBLIES. 


PAET   FIRST. 

OF  THE  ELECTION  OF  THE  MEMBERS. 


13.  In  this  part,  will  be  considered:  —  First,  Constituencies; 
Second,  the  Persons  competent  to  be  Electors ;  Third,  the  Persons 
competent  to  be  Elected ;  Fourth,  the  Mode  of  Election  ;  Fifth,  the 
Retm-n  of  the  Persons  Elected;  and,  Sixth,  Controverted  Returns 
and  Elections. 


CHAPTER    FIRST. 

OF     CONSTITUENCIES. 

14.  The  fundamental  idea  of  a  representative  government  is, 
that  a  large  number  of  persons  select  from  themselves  a  smaller 
number,  or,  it  may  be,  a  single  person,  to  represent  and  act  for 
them,  in  the  performance  of  those  functions  which  constitute  gov- 
ernment. It  is  immaterial,  in  this  respect,  whether  the  whole  body 
of  the  electors  act  together  in  the  selection,  or  whether  they  act  by 
divisions,  each  of  which  elects  its  proportion  of  the  delegated  body ; 
and,  where  the  electors  are  divided  into  separate  bodies,  for  this 

(9) 


10  LEGISLATIVE    ASSEMBLIES.  [PaRT   L 

purpose,  it  is  immaterial  whether  the  division  is  by  classes,  or 
orders,  as  of  the  different  trades  or  professions,  or  by  means  of  local 
and  territorial  boundaries ;  inasmuch,  as  in  all  these  forms,  the 
essential  principle  of  representation  is  attained  and  secured.  In 
this  country,  the  first  and  the  last  are  the  only  forms  in  use ;  the 
former,  with  one  or  two  exceptions,  in  the  election  of  the  chief 
executive  magistrates  of  the  several  States,  and  the  latter  in  the 
election  of  the  members  of  the  legislative  assemblies. 

15.  For  the  purpose,  among  others,  of  electing  the  members  of 
legislative  assemblies,  the  States  are  respectively  divided  and  sub- 
divided into  counties,  towns,  cities,  districts ;  each  of  which,  for 
the  purposes  for  which  such  division  or  subdivision  takes  place, 
constitutes  a  municipal  corporation  or  body  politic.  In  some  of 
the  States,  the  smaller  divisions,  towns  and  cities,  for  example, 
elect  each  of  them  one  or  more  of  the  members  of  the  popular 
branch  of  the  legislature  ;  in  others,  these  smaller  corporations  are 
united,  tw^o  or  more  of  them  together,  into  districts,  for  the  same 
purpose ;  whUe,  in  all  the  States,  the  members  of  the  more  select 
or  senatorial  branch  are  elected,  either  by  counties,  each  of  which 
comprises  several  smaller  subdivisions  of  cities  or  towns,  or  by  dis- 
tricts composed  of  several  counties. 

16.  These  different  kinds  of  constituencies  have  given  rise  to 
two  different  modes  of  proceeding  in  making  and  determining  elec- 
tions, and  authenticating  the  right  of  membership,  or,  in  other 
words,  of  returning  the  members  elected.  The  return  of  a  member, 
as  the  term  is  used  in  this  country  in  a  popular  sense,  denotes  the 
election  merely,  as  when  it  is  said,  that  such  a  person  is  returned, 
that  is,  elected,  a  member ;  but  in  its  proper  and  technical  sense, 
it  denotes  the  instrument  by  which  the  election  is  authenticated,  or 
certified  from  the  constituent  to  the  representative  body.  Where 
aU  the  electors  of  a  constituency  assemble  together  in  one  place, 
and  give  in  their  votes  to  one  set  of  municipal  officers,  such  officers 
act  ministerially  in  receiving  the  votes,  and  also  judicially  in  deter- 
mining the  result  of  the  election ;  but  where  the  electors  assemble 
in  different  places,  and  give  in  their  votes  to  as  many  different  sets 
of  municipal  officers,  the  latter  for  the  most  part  act  merely  in  a 
ministerial  capacity,  in  receiving  the  votes  and  transmitting  certifi- 
cates or  records  of  them  to  a  central  board  of  officers,  to  whom  the 
judicial  functions  of  determining  the  election  and  returning  the 
members  elected  are  delegated.^ 

1  Biddle  and  another  v.  Wing,  Clarke  &  Hall,      which  are  in  question,  it  is  clear,  that  they  so 
504.     Where  receiving  officers  exercise  their      far  act  judicially. 
judgment,  in    receiving  or  rejecting  votes, 


Chap.  L]  constituencies.  11 

17.  Whether,  however,  the  electors  vote  by  districts  composed 
of  several  smaller  municipal  bodies,  or  those  of  the  same  conr-titu- 
ency  vote  together,  the  meetings  for  the  purpose  are  held  in  the 
same  manner,  governed  by  the  same  rules,  and  conducted  by  the 
same  officers ;  the  only  ditt'erence  being,  as  already  observed,  that, 
in  the  first  case,  the  votes  are  received  by  one  set  of  officers,  and 
the  election  determined  by  another ;  whereas,  in  the  second  case, 
both  these  functions  are  performed  by  the  same  officers. 

18.  The  constituencies  above  described  are  those  into  which  each 
State  and  territory  is  divided,  for  the  choice  of  the  members  of  the 
local  legislatures ;  those  which  relate  to  the  election  of  the  members 
of  Congress,  or  the  legislature  of  the  Union,  remain  to  be  briefly 
noticed.  In  this  respect,  the  Congress  of  the  United  States  is 
peculiar ;  the  population  and  territory,  of  which  its  constituencies 
are  composed,  being  already  represented,  for  the  general  purposes 
of  government,  in  their  local  legislatures. 

19.  The  number  of  the  members .  of  which  the  house  of  repre- 
sentatives is  from  time  to  time  to  consist,  according  to  the  constitu- 
tion, being  first  determined  by  Congress,  and  apportioned  among  the 
several  States,  two  methods  have  been  practised  in  their  election, 
namely,  they  have  been  chosen  by  general  ticket,  as  it  is  called,  or 
by  the  district  system.  According  to  the  former,  the  qualified 
voters  of  each  State  elect,  at  one  election,  and  on  one  ballot,  the 
whole  number  of  members  to  which  such  State  is  entitled.  Ac- 
cording to  the  latter  method,  the  States  are  divided  by  their  own 
legislatures  into  suitable  territorial  districts,  each  of  which  is 
entitled  to  elect  one  member.  Where  a  State  is  only  entitled 
to  one  member,  these  two  systems  are,  in  effect,  the  same. 
Sometimes,  where  a  territorial  division  cannot  conveniently  be 
made,  a  district  is  double ;  or  in  other  words,  is  large  enough  to  be 
allowed  to  elect  two  members  instead  of  one.  In  these  districts, 
the  election  of  members  of  Congress  is  conducted  in  the  same  man- 
ner, and  by  the  same  officers,  as  other  elections. 

20.  The  immediate  constituents,  that  is,  the  elective  power,  of 
the  senate  of  the  United  States,  are  the  several  States  themselves, 
in  their  aggregate  or  municipal  capacity  ;  the  constitution  providing 
that  the  senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  chosen  by  the  legislature  thereof. 

21.  It  would  seem  to  be  clear,  from  this  language,  that  the 
requisition  of  the  constitution  of  the  United  States,  in  regard  to  the 
election  of  the  senate,  would  not  be  complied  with,  unless  its  mem- 
bers were  elected  by  the  legislatures  of  the  several  States,  by  legis- 


12  LEGISLATIVE    ASSEMBLIES.  [PaRT   I. 

lative  acts,  thai  is,  in  the  same  way  that  laws  are  passed  by  the 
concuiTent  act  of  the  two  branches,  approved  by  the  executive. 
But  the  practice  has  so  long  prevailed,  and  been  silently  acquiesced 
in  by  the  senate,  of  electing  its  members  by  joint  ballot  of  the  two 
branches  of  a  State  legislature,  in  which  the  members  constitute 
one  aggregate  body,  and  in  which  the  less  numerous  branch  is 
dissipated  and  lost  in  the  larger,  that  it  is  perhaps  too  late  now  to 
call  in  question  this  latter  mode.  StUl,  as  it  is  not  competent  for 
the  members  of  a  legislative  assembly  to  do  any  ordinary  act  of 
legislation,  by  a  proceeding  in  joint  ballot,  an  election,  effected  by 
the  members  of  a  legislative  assembly  in  that  manner,  cannot  prop- 
erly be  said  to  be  a  choice  by  the  legislature.^ 


CHAPTER    SECOND 

OF   THE  PERSONS   COMPETENT   TO   BE   ELECTORS. 

22.  The  right  of  suf&age  is  regulated  in  part  by  what  may  be 
called  the  common  political  law,  but  chiefly,  by  the  constitutions 
and  laws  of  the  several  States.  The  federal  constitution  contains 
no  provisions  of  its  own  touching  the  qualifications  of  electors  of 
representatives,  but  adopts  those  of  the  several  States ;  declaring 
that  the  electors  in  each  State,  to  offices  under  the  constitution  of 
the  United  States,  shall  have  the  qualifications  requisite  for  electors 
of  the  most  numerous  branch  of  the  legislature  of  such  State. 

^  Chancellor  Kent  had  already  expressed  of  the  senate  is  dissipated  and  lost  in  the  more 

his  doubts  on  this  subject  :  — "  There  were  numerous  vote  of  the   assembly.     This   con- 

difBculties,  st)me  years  ago,  as  to  the  true  struction  has  become  too  convenient,  and  has 

construction  of  the  constitution  in  the  choice  been  too  long  settled  by  the  recognition  of 

of  senators.     They  were   to  be  chosen  by  the  senators   so   elected,   to    be    now   disturbed  ; 

legislature,  and   the  legislature   was   to   pre-  though  I  should  think,  if  the  question  was  a 

scribe  the  times,  places,  and  manner,  of  hold-  new  one,  that  when  the  constitution  directed 

inc;  elections  for  senators,   and  congress  are  that  the  senators  should  be  chosen  by  the  legia- 

authorized  to  make  and  alter  such  regulation,  lature,  it  meant  not  the  members  of  the  legis- 

except  as  to  the  place.     As  the  legislature  lature  per  capita,  but  the   legislature  in   the 

may  prescribe  the  manner,  it  has  been  con-  true  technical  sense,  being  the  two  houses  act- 

sidered  and   settlefl,  in   New  York,  that  the  ing  in  their  separate  and  organized  capacities, 

Jegislature  may  prescribe  that  they  shall  be  with  the  ordinary  constitutional  right  of  nega- 

chosen  by  joint  vote  or  ballot  of  the  two  tive    on    each  other's    proceedmgs."    Kent'» 

houses,  in  case  the  two  houses  cannot  sepa-  Commentaries,  I.  225. 
rately  concur  in  a  choice,  and  then  the  weight 


Chap,  tl]         persons  competent  to  be  electors. 


13 


23.  The  exercise  of  this  right  lying,  as  it  does,  at  the  foundation 
of  all  free  institutions  of  government;  it  is  provided,  in  express 
terms,  in  many  of  the  State  constitutions,  that  electors  shall,  in  all 
cases  except  treason,  felony,  or  breach  of  the  peace,  be  privileged 
from  arrest,  on  the  days  of  election,  during  their  attendance  at, 
going  to,  and  returning  therefrom ;  and  that  no  elector  shall  be 
obliged  to  do  duty  in  the  militia  on  any  day  of  election,  except  in 
time  of  war  or  public  danger.  These  provisions  are  both  found  in 
the  constitutions  of  Maine,  Virginia,  lUinois,  Michigan,  Iowa,  and 
California ;  the  former  only  in  those  of  Connecticut,  Pennsylvania, 
Delaware,  Alabama,  Mississippi,  Tennessee,  Louisiana,  Kentucky, 
Ohio,  Indiana,  Missouri,  Arkansas,  and  Texas ;  and  in  almost  aU 
the  States  though  bribery  is  an  offence  at  common  law,  there  are 
constitutional  provisions  or  laws,  to  secure  the  freedom  and  purity 
of  elections. 

24.  By  the  common  political  law  of  England  and  of  this  country, 
when  not  otherwise  specified  in  a  particular  State,  by  its  constitu- 
tion or  laws,  certain  descriptions  of  persons  are  deemed  to  be  ex- 
cluded from  exercising  the  right  of  political  suffrage,  even  though 
not  prohibited  therefrom  by  any  express  constitutional  or  legal  pro- 
vision. The  persons  thus  excluded  are  minors,  idiots  and  lunatics, 
women,  and  aliens.  With  these  exceptions,  all  persons,  possessing 
the  qualifications  required,  and  not  subject  to  any  of  the  disabilities 
specified,  by  the  constitution  or  laws  of  the  States,  in  which  they 
live,  may  vote  at  all  elections  therein.  In  considering  the  subject 
of  the  right  of  suffrage,  therefore,  it  will  be  convenient,  first,  to 
notice  briefly  the  general  exceptions  aUuded  to ;  second,  to  enumer- 
ate the  qualifications  required,  and,  thii-d,  the  disabilities  pro- 
nounced, by  the  constitution  and  laws  of  the  several  States.  It 
must  be  recollected,  however,  that  the  persons  enumerated  above, 
as  excluded  from  exercising  the  right  of  -suffrage  by  the  common 
political  law,  if  mentioned  in  the  constitution  or  laws  of  a  State, 
are,  of  course,  governed  exclusively  by  the  provisions  thereof,  irre- 
spective of  the  common  political  law. 

Section  I.     Of   Persons   excluded   by   the    Common   Political 
Law  from  the  Right  of  Suffrage. 

25.  Infants,  or  persons  under  the  age  of  legal  majority,  are  ex- 
cluded from  voting,  on  the  same  general  ground,  on  which  they 
are  prohibited  from  doing  any  other  legal  act,  namely,  thefr  pre- 
sumed want  of  capacity.     The  age  of  twenty-one  is  the  period  of 

2 


14  LEGISLATIVE   ASSEMBLIES.  [PaET    L 

majority  for  males,  throughout  the  United  States ;  and  that  age 
is  completed  according  to  the  common  law,  on  the  beginning 
of  the  day  preceding  the  day  of  the  anniversary  of  the  person's 
birth.i 

26.  In  the  constitutions  of  many  of  the  States,  the  age  necessary 
to  qualify  one  to  be  an  elector  is  mentioned  ;  in  some,  the  language 
is  "  twenty-one  years  of  age  "  or  "  twenty-one  years  of  age  and  ^ 
upwards ; "  in  others,  it  is,  "  above  the  age  of  twenty-one  years." 
The  intention  is  perhaps  the  same  in  both  cases ;  but,  according  to 
a  strict  legal  construction,  the  latter  phraseology  would  exclude 
the  day  of  arrival  at  full  age,  and  so  prevent  one  from  voting, 
until  the  next  day  after ;  whereas  the  former  would  allow  him  to 
vote  on  that  day. 

27.  Idiots  and  lunatics  are  also  excluded  from  voting  for  the 
same  general  reason,  —  their  want  of  capacity, — which  disqualifies 
them  from  the  doing  of  other  legal  acts :  the  former  being  perpetu- 
ally disabled,  and  the  latter  temporarily  so,  while  in  the  state  of 
insanity.^  In  regard  to  lunatics,  whether  their  malady  is  periodical 
or  constant  in  its  nature,  there  seems  no  reason  to  doubt,  that  their 
right  to  vote,  like  their  capacity  to  do  other  legal  acts,  wiU  depend 
upon  their  mental  condition  at  the  time  of  the  election ;  and,  if,  at 
that  time,  their  condition  of  mind  is  such,  that  a  will  or  deed  then 
made  would  be  valid,  or  an  agreement  then  entered  into  binding  in 
law,  their  votes  ought  to  be  received.  Drunkenness  is  regarded  as 
a  temporary  insanity.^ 

28.  Several  of  the  State  constitutions  contain  express  provisions 
relating  to  this  subject.  By  those  of  Delaware,  Ohio,  and  New 
Jersey,  it  is  provided,  that  "  no  idiot  or  insane  person  shall  enjoy  the 
right  of  an  elector;"  the  constitution  of  Virginia  declares,  that, 
"  the  right  of  suffrage  shall  not  be  exercised  by  any  person  of  un- 
sound mind ; "  and  by  those  of  Rhode  Island,  Maryland,  and  Wis- 
consin, "  lunatics  and  persons  non  compotes  mentis  are  excluded  from 
the  right  of  suffrage."  In  cases  of  constitutional  or  legal  prohibition 
to  exercise  the  right  of  suffrage  by  these  persons,  it  is  presumed, 
that  the  principle  stated  in  the  preceding  paragraph  is  equally 
applicable. 

29.  The  rule  of  exclusion  from  the  right  of  suffrage,  on  the 

1  Kent's  Commentaries,  n.  232 ;  Rogers  on  '  OkehampUm,  Fraser,  I.  162,  164;  Bridge- 
Elections,  86.  water,  Peckwell,   I.   109;    Bedford,  Perry  & 

^  The  word   "or"    is  sometimes  used  in-  Knapp,  I.  129. 

Btead  of  "and."    The  difference  is  not  mate-  ••  Wlgnn,  Falconer  &  Fitzherbert,  695 ;  Mon- 

riaL  mouth,  Knapp  &  Ambler.  413. 


Chap.  IL]         persons  competent  to  be  electors.  16 

ground  of  want  of  capacity,  refers  only  to  defects  of  mind,  and  not 
to  those  which  are  merely  physical,  or  of  the  bodily  organs  and 
senses ;  consequently,  no  mere  bodily  defect,  as  of  one  or  more  of 
the  senses,  or  physical  infirmity,  as  from  sickness  or  other  cause,  is 
sufficient  to  preclude  one  firom  the  right  of  suffrage,  though  it  may 
prevent  him  from  exercising  that  right;  and  it  has  accordingly 
been  held,  that  a  deaf  and  dumb  person,^  if  possessed  of  such  a 
measure  of  intelligence,  as  to  understand  the  nature  of  the  right  to 
vote,  and  to  be  competent  to  take  the  oath  required  by  law,  (if  any), 
is  entitled  to  his  right  of  suffrage,  and  may  give  his  vote,  either 
orally  or  by  ballot,  through  the  instrumentality  of  some  person,  who 
is  accustomed  to  interpret  his  signs.^ 

30.  If  the  exclusion  of  females  from  the  right  of  suffrage  was 
limited  to  married  women,  whose  "  legal  existence  and  authority 
are,  in  a  degree,  lost  or  suspended,  during  the  continuance  of  the 
matrimonial  union,"  ^  as  a  consequence  of  the  principle  of  the  com- 
mon law,  by  which  husband  and  wife  are  regarded  as  one  person, 
the  reason  of  the  exclusion  would  probably  be  found  in  a  supposed 
subjection  to  the  authority  of  their  husbands ;  but,  as  unmarried 
women  of  full  age,  and  competent  to  perform  other  legal  acts,  are 
equally  excluded  from  voting,  the  reason  must  be  more  comprehen- 
sive than  any  supposed  marital  restraint.  The  ground  as^^igned  by 
the  philosophic  historian  Guizot,  —  that  women,  being  destined  by 
the  law  of  their  sex  for  a  state  of  existence  purely  domestic,  are 
therefore  incapable  of  deciding  upon  those  interests,  which  are  in- 
volved in  questions  of  political  suffrage,  —  probably  embodies  the 
sense  of  mankind  on  this  subject.^ 

31.  In  the  constitutions  of  all  the  States,  except  that  of  Georgia, 
women  are  impliedly  excluded  from  the  right  of  suffrage  by  the  use 
of  descriptive  words,  in  the  affirmative,  which  restrict  it  to  persons 
of  the  male  sex  ;  but,  in  none  of  them,  are  women  expressly  excluded 
by  negative  words.  By  the  constitution  of  Georgia,  "  citizens  and 
inhabitants,"  possessing  the  other  requisite  qualifications,  are  en- 
titled to  vote.5     The  disability  of  women  to  vote,  it  must  be  recol- 


-  The  constitutions  of  Virginia  and  Ken-  length,  in  Lieber's  PQlitical  Ethics,  Part  H. 
tueky  provide,  thut  in  all  elections,  the  votes  Book  IV.  Chap.  I.  269,  270. 

shall  be  given  openly,  and  not  by  ballot,  but         ^  But  though  women  cannot  vote,  instances 

that  dumb  persons,  entitled  to  suffrage,  may  have  occurred  in  England,  in  which  they  hava 

vote  by  ballot.  taken  a  part  in  elections,  and  have  actually 

-  Ropers  on  Elections,  87,   88;  Letcher  v.  in  person,  or  by  attorney,  made  or  joined  in 
ifoore,  Clarke  &  Hall,  757.  making  the  retiirn.     The  return  from  Gatton, 

'  Kent'?  Commentaries,  II.  129,  in  162S,  was  made  by  Mrs.  Caplcy,  et  cmne4 

♦See    the   remarks  of    Guizot   quoted    at  inJHibUantes,(Ci\rc\\;l.  -Wo).     In  the   14th  of 


16  LEGISLATIVE  ASSEMBLIES.  [PaRT   L 

lected,  applies  only  to  mimicipal  proceedings ;  in  moneyed  and 
other  corporations  not  municipal,  in  which  they  are  shareholders, 
women  vote  like  any  other  proprietors. 

32.  The  only  remaining  description  of  persons,  who  are  excluded 
from  the  right  of  suf&age,  is  that  of  aliens;  who, being  persons  born 
without  the  territorial  boundaries  of  the  United  States,  and  there- 
fore presumed  to  be  the  subjects  or  citizens  of  some  other  govern- 
ment, are  not  supposed  to  possess  such  a  knowledge  of  our  institu- 
tions, or  to  be  so  exclusively  attached  to  them,  as  to  render  it  safe 
or  proper  that  they  should  be  intrusted  with  any  portion  of  the 
political  power ;  and  this  principle  is  so  essential  and  fundamental, 
that  no  constitutional  or  legal  provision  is  necessary  to  exckide 
aliens  from  voting;  but  they  are  considered  as  so  excluded,  by  the 
common  political  law  already  alluded  to,  unless  the  right  of  suffrage 
is  expressly  conferred  upon  them  by  the  constitution  or  laws  of  the 
State  in  which  they  live.^  When  aliens  become  naturalized,  they 
acquire,  with  some  exceptions,  all  the  political  rights,  which  belong 
to  natural  born  citizens.  In  several  of  the  State  constitutions,  citi- 
zenship is  inserted  expressly,  as  a  descriptive  qualification ;  in 
others  it  is  only  inferrible  from  the  use  of  equivalent  terms. 

Section  II.     Op  the   Constitutional  Qualiitcatigns  requisite 
FOR  the  Exercise  of  the  Right  of  Suffrage. 

33.  In  the  constitutions  of  the  several  States,  there  are  numerous 
and  various  qualifications  expressly  prescribed ;  the  possession  of 
one  or  more  of  which  is  made  essential  to  entitle  a  person  to  be  an 
elector.  The  following  is  an  enumeration  of  the  qualifications  thua 
prescribed,  namely:  1st,  citizenship;  2d,  freedom;  3d,  residence  foi 
a  certain  specified  period ;  4th,  possession  of  a  certain  amount  oi 
description  of  property ;  5th,  payment  of  a  tax ;  6th,  taking  a  pre- 
scribed oath;  7th,  settlement  within  the  State;  8th,  performance 

Elizabeth,  the  return  from    Aylesbury  -was  kind  has  probably  occurred  since  the  revolu- 

made  by  Dame  Dorothy  Packington,  describ-  tion ;  and  the  only  way  in  which  women  have 

ing  herself  as  widow,  late  wife,  of  Sir  John  interfered  in  elections  in  modern  times  has 

Packington,  knight,  lord  and  owner  of  the  been  by  bringing  their  personal  influence  into 

town  of  Aylesbury ;  declaring  that  she  had  the  canvass.    By  the  old  constitution  of  New 

chosen,  named,  and  appointed  Thomas  Litch-  Jersey,  adopted  in  1776, "  all  inhabitants,"  pos- 

field  and  George  Harden,  Esquires,  to  be  her  sessed  of  certain  qualifications  therein  requir- 

burgesses  of  her  said  town  of  Aylesbury ;  and,  ed  as  to  property,  were  allowed  to  exercise 

notifying  and  approving  to  be  her  own  act  the  right  of  suffrage.    Under  this  constitution, 

whatsoever  the  said  burgesses  should  do  in  it  is  said,  that  women  were  formerly  accus- 

the  service  of  the  queen  in  parliament,  as  fully  tomed  to  vote. 

and  wholly  as  if  she  might  be  present  there  in         ^  Mass.  Reports,  VII.  523;   Gushing,  Story 

person.    (Male,  242,  note.)    No  case  of  this  &  Jossevln's  Reports,  119. 


Chap.  II.]         persons  competent  to  be  electors.  17 

of  military  duty;  9th,  labor  on  the  highways;  10th,  to  be  a  house- 
keeper, or  head  of  a  family;  11th,  to  be  quiet  and  peaceable;  and 
12th,  to  be  of  a  good  moral  character.  It  is  proposed  to  notice, 
very  briefly,  some  of  the  most  important  of  these  various  qualifica- 
tions, indicating,  at  the  same  time,  the  States  in  whose  constitutions 
they  are  resoectively  found. 

1.    Citizenship. 

34.  In  all  the  constitutions,  citizenship  is  required  as  a  qualifica- 
tion for  the  exercise  of  the  right  of  suffrage ;  in  some  generally ;  in 
others,  that  of  the  particular  State ;  and  in  others  again,  citizenship 
of  the  United  States.  But  these  terms  are  immaterial,  inasmuch, 
as  by  the  constitution  of  the  United  States,  congress  is  authorized 
to  estabUsh  a  uniform  rule  of  naturalization ;  and  the  citizens  of 
each  State  are  entitled  to  all  the  privileges  of  citizens  in  the  several 
States.  The  constitutions  of  Indiana,  Wisconsin,  and  IVIichigan, 
dispense  with  this  requisition  in  part,  in  favor  of  persons  of  foreign 
birth,  who  have  declared  their  intention  to  become  citizens  of  the 
United  States,  conformably  to  the  laws  thereof. 

2.  Freedom. 

35.  In  the  constitutions  of  Vermont  and  Connecticut,  the  word 
"  freeman  "  occurs,  as  descriptive  of  a  qualification  to  vote ;  in  these 
cases,  the  term  refers  only  to  a  person  who  is  a  member  or  "  free " 
of  the  State,  regarded  as  a  municipal  corporation.  In  the  consti- 
tutions of  other  States,  in  which  the  word  is  found,  it  merely  means 
one  who  is  not  a  slave ;  in  this  latter  sense,  it  is  wholly  super- 
fluous. 

3.  Residence. 

36.  By  the  constitutions  of  all  the  States,  residence  within  the 
State  for  a  certain  period,  and,  for  a  portion  of  that  period,  within 
the  particular  county,^  district,  city,  or  town,  in  which  one  proposes 
to  vote,  is  prescribed  as  a  requisite  to  the  exercise  of  the  right  of 
suffrage.  In  describing  this  qualification,  the  terms  used  are  differ- 
ent, in  different  constitutions ;  being,  in  some  of  them,  "  inhabit- 
ant," —  in  some,  "  resident,"  and,  in  others,  "  citizen,"  of  the  State 
or  county ;  all  of  which,  however,  may  be  regarded  as  nearly  equiva- 
lent to  the  legal  term  "  domicil,"  ^  or,  as  it  is  defined  in  the  con- 
stitution of  Massachusetts,  the  place  "  where  one  dweUeth  or  hath 
his  home."  ^ 

1  See  Kdly  v.  Harris,  Clarke  &  Hall,  260.  '  Constitution  of  Massachusetts,    '-hap.  L, 

«  MetcfUf 's  Reports,  I.  245,  sect.  2,  article  2. 

2* 


18  LEGISLATIVE   ASSEMBLIES.  [PaRT   1, 

37.  In  the  constitutions  of  Maine,  Rhode  Island,  New  Jersey, 
New  York,  Virginia,  Indiana,  Illinois,  Arkansas,  Texas,  Iowa, 
Ohio,  Florida,  JNIissouri,  "Wisconsin,  Alabama,  and  Delaware,  it 
has  been  thought  expedient  to  provide,  that  persons  in  the  military, 
naval,  or  marine  service  of  the  United  States  (and  in  Maine  the 
provision  is  extended  to  persons  in  the  service  of  that  State)  shall 
not  be  considered  as  resident  in  those  States,  so  as  to  entitle  them 
to  vote  therein,  by  reason  of  being  stationed  in  any  garrison,  bar- 
rack, or  military  place,  within  their  limits.^  But,  this  provision, 
according  to  the  general  principles  of  the  law  of  domicil,  must  be 
wholly  unnecessary,  at  least,  in  all  cases,  where  such  military  sta- 
tion belongs  or  has  been  ceded  to  the  United  States,  with  the  usual 
concomitants  of  exclusive  jurisdiction.^ 

38.  The  constitutions  of  New  York,  Maine,  and  California,  also 
provide,  that  the  residence  of  a  student  at  any  seminary  of  learning 
shall  not  entitle  him  to  the  right  of  suf&age  in  the  town  where 
such  seminary  is  established.  The  question  thus  settled,  being  one 
of  frequent  occurrence,  and  not  without  difficulty,  as  depending  on 
the  law  of  domicil ;  —  it  cannot  be  deemed  superfluous  to  settle  it 
by  an  express  provision.  The  constitutions  of  the  two  last-named 
States  make  a  further  exception,  as  to  residence,  of  persons  kept 
at  any  almshouse  or  other  asylum,  at  public  expense,  and  of 
persons  confined  in  any  public  prison. 

39.  The  constitution  of  Mississippi  contains  a  provision,  (and  a 
similar  one  is  found  in  that  of  Texas,)  that  where  an  elector  hap- 
pens to  be  in  any  county,  city,  or  town,  other  than  that  in  which 
he  resides,  or  to  have  removed  thereto  within  four  months  preced- 
ing an  election,  he  may  vote  therein  for  any  pubfic  officer,  for  whom 
he  might  have  voted,  if  he  had  remained  at  home,  or  had  not 
removed  his  residence. 

40.  The  constitution  of  Georgia,  after  providing  for  a  residence 
in  the  county,  where  one  claims  a  right  to  vote,  dispenses  with  it 
altogether  in  case  of  invasion ;  in  which  case,  it  declares,  that  if 
the  inhabitants  of  a  county  are  driven  therefrom,  so  as  to  prevent 
an  election  therein,  such  inhabitants  being  a  majority  of  the  voters 
of  such  county,  may  proceed  to  an  election  in  the  nearest  county 
not  in  a  state  of  alarm.  This  kind  of  qualification  being  required 
in  almost  every  State,  in  some  form  or  other,  it  will  be  useful  to 
suggest  some  of  the  rules  which  are  applicable  to  it. 

1  See  Biddk  and  another  v.  Wing,  Clarke  &         *  Opinion  of  the  Justices,  fc,  Gushing,  S>. 
Hall,  604,  612.  and  J.,  418. 


Chap.  II.]  persons  competent  to  be  electors.  19 

41.  In  the  first  place,  the  residence  must  be  next  preceding  the 
election ;  so  that,  if  a  voter,  regularly  qualified  in  point  of  resi- 
dence, removes  from  the  place  of  his  domicil,  and  becomes  an 
inhabitant  of  some  other  place,  and  afterwards  returns  to  the 
former,  he  will  not  be  entitled  to  resume  his  right  of  suffrage  there, 
on  the  strength  of  his  previous  residence ;  but  he  must  again 
acquire  the  right  by  renewing  and  continuing  his  residence  for 
the  requisite  period.  By  the  constitution  of  Pennsylvania,  the 
period  of  residence  otherwise  required  is  shortened,  in  the  case 
of  a  qualified  voter  who  removes  from  the  State  and  returns. 

42.  Secondly,  the  moment  a  voter  changes  his  residence,  and 
acquires  a  new  domicil,  he  loses  his  right  to  vote  in  the  former, 
because  he  no  longer  resides  there  ;  but  he  does  not  acquire  a  right 
to  vote  in  the  latter,  until  he  has  resided  there  the  requisite  length 
of  time ;  the  popular  notion  that  a  man,  having  once  become  a 
voter,  must  always  afterwards  have  a  right  to  vote  somewhere,  and 
consequently,  that  he  retains  a  right  to  vote  in  one  place  until  he 
acquires  it  in  another,  is  wholly  unfounded.  This  principle  of  po- 
litical common  law,  which  is  the  necessary  result  of  the  law  of 
domicil,  applied  to  the  constitutional  requisition  of  residence,  is 
controlled  by  the  constitutions  of  Maryland,  Louisiana,  and  Mis- 
souri, which  declare,  expressly,  that  a  voter,  removing  from  one 
voting  district  to  another,  shall  not  lose  his  right  to  vote  in  the 
former,  until  he  has  acquired  a  right  to  vote  in  the  latter. 

43.  Thirdly,  it  is  perhaps  scarcely  necessary  to  observe,  that  the 
time  of  residence  requisite  to  qualify  an  elector  will  run  on  and  be 
attained,  notwithstanding  that  during  the  whole  or  a  portion  of 
the  same  time,  he  may  be  other^vise  disqualified  ;  as,  for  example, 
in  the  case  of  a  minor,  or  alien,  or  of  one  disqualified  by  the  non- 
payment of  a  tax,  or  the  want  of  the  requisite  property  qualifica- 
tion. It  would  be  other\^dse,  of  course,  if  residence  coexistent  with 
some  other  form  of  qualification,  was  required.^ 

1  The  constitution    of  Massachusetts  pre-  Harvard    College  v.   Gore,  Pick.  V.  870,  375, 

Bcribes  th:it  every  member  of  the  house  shall,  that  the  term  "  inhabitant  "   in  the   constitu- 

for  one  year,  at  least,  next  preceding  his  elec-  tion  and  laws  of  Massachusetts  implied  "  citi- 

tion,   have   been   an  inhabitant  of  the   town  zenship,"  reported  against  the  validity  of  the 

from  which  he  shall  be  chosen.    In  the  case  election.     No  question,  was  taken  on  the  re- 

of  MaUkji,  Gushing,  S.  and  J.,  377,  the  sitting  port,  except  to  recommit  it ;    the  house  ap- 

membor,  who  was  an  alien  bom  at  the  time  parently    agreeing    to    the    report,    but    the 

of  his  election,  had  resided  in  Maiden  for  more  member  resigned  his  seat,  and  no  discussion 

than  a  year,  but  had  been  naturalized  only  took  place.     On  the  contrary  in  the  case  of 

a  few  weeks.     The    committee  on  elections,  Biihlle  v.  Richards,  in  which  the  election  of 

on  the  strength  of  the  decision  of  the  Supreme  the   delegate   from    Michigan   to    the    house 

Judicial  Court    of  the  State,  in  the  case  of  of  representatives   in    congress   was  contnv 


20  LEGISLATIVE   ASSEMBLIES.  [PaRT    I. 

4.   Property. 

44.  In  five  of  the  States,  Connecticut,  New  York,  (as  to  men 
of  color  only,)  Rhode  Island,  and  North  and  South  Carolina,  is  the 
property  qualification,  in  its  direct  form,  still  requisite ;  many  of 
those  of  the  older  States,  in  which  it  was  formerly  required,  having 
since  abolished  it,  and  the  newer  States,  (those  admitted  into  the/ 
Union  since  the  year  1800,)  with  some  exceptions,  never  having 
made  it  a  qualification. 

5.   Payment  of  a  Tax. 

45.  This  form  of  the  property  qualification,  if  it  may  be  termed 
such,  is  retained  in  several  of  the  States,  namely,  Massachusetts, 
Connecticut,  New  York,  (as  to  persons  of  color,)  Pennsylvania, 
Rhode  Island,  Delaware,  North  Carolina,  South  Carolina,  and 
Georgia  ;  but,  in  Massachusetts,  persons  legally  exempt  from  taxa- 
tion are  placed  upon  the  same  footing  with  those  who  have  paid 
their  taxes ;  and  in  Georgia,  the  condition  is  the  payment  of  all 
taxes  which  may  have  been  required  of  the  elector,  or  which  he 
may  have  had  an  opportunity  of  paying. 

6  to  12.    Other  Qualifications. 

46.  The  other  qualifications,  which  have  been  enumerated,  do 
not  seem  to  require  any  particular  notice.^  In  Vermont  and  Con- 
necticut, an  oath  is  required ;  in  the  latter  a  legal  settlement 
within  the  State ;  in  Rhode  Island,  Florida,  and  Connecticut,  in 
certain  cases,  the  performance  of  military  duty,  or  legal  exemption 
therefrom ;  in  Virginia  an  elector  must  formerly  have  been  a 
housekeeper  or  head  of  a  family ;  ^  and  in  Connecticut,  of  a  good 
moral  character. 

Section  III.  —  Of  Disqualifications  foe,  the   Exercise  of  the 

Right  of  Suffrage. 

47.  Besides  the  negative  disqualifications  resulting  from  the 
want  of  the  required  qualifications,  certain  descriptions  of  persons, 
although  otherwise  qualified,  are  expressly  disqualified  by  the  con- 
stitutions of  some  one  or  more  of  the  States,  namely  :  1,  paupers  ; 

verted  on  the  ground  above  mentioned,  the  ^  These  provisions  exist  in  so  great  number 

house  held  that  the  laws  of  Michigan,  which  and  variety,  in  the  constitutions  and  laws  of 

required  residence  for  a  year,  and  citizenship,  the  several  States,  that  a  few  only  of  the  most 

M  a  qualification   for  office,  were  complied  prominent  can  be  adverted  to,  in  this  treatise, 

with  by  residence  for  a  year,  and  citizenship  *  See  Draper  v.  Johnston,  Clarke  &  Hall,  702. 
at  the  time  of  the  election.    Clarke  &  Hall,  407. 


Chap,  II.]         persons  competent  to  be  electors.  21 

2,  persons  under  guardianship;  3,  Indians  not  taxed;  4,  persons 
excused  from  taxation  at  their  own  request ;  5,  persons  convicted 
of  certain  crimes ;  6,  persons  of  color ;  and,  7,  persons  in  the  mili- 
tary, naval,  or  marine  service  of  the  United  States.  A  brief  notice 
of  some  of  the  principal  of  these  disqualifications  wUl  suffice. 

1.     Paupers. 

48.  Paupers,  in  consequence  of  their  dependency  of  situation, 
and  want  of  the  common  necessaries  of  life,  which  render  it  im- 
probable that  they  will  exercise  a  free  choice,^  are  expressly  dis- 
qualified from  voting  by  the  constitutions  of  Maine,  Massachusetts, 
New  Hampshire,  New  Jersey,  Delaware,  Rhode  Island,  and  Vir- 
ginia. The  term  "  pauper,"  in  the  precise  and  technical  meaning, 
which  it  has  acquired  in  this  country,  is  understood  to  designate  a 
person,  who,  either  upon  his  own  request,  or  otherwise,  receives  aid 
and  assistance  for  himself,  or  his  family,  from  the  public  provision 
made  by  law  for  the  support  and  maintenance  of  the  poor.- 

49.  In  England,  the  receiving  of  parish  relief,  for  the  ordinary 
support  and  maintenance,  either  in  whole  or  in  part,  of  the  voter  or 
his  family,  within  a  year,  previous  to  the  election,  is  held  to  be  a 
disqualification ;  '^  in  this  country,  the  situation  of  the  voter,  at  the 
time  of  the  election  only,  or  at  the  time  of  taking  the  prehminary 
steps,  if  any  are  requisite,  to  the  exercise  of  the  right  of  suffrage, 
would  probably  be  regarded ;  and  it  seems  immaterial,  whether  the 
support  is  wholly  or  only  in  part  derived  from  the  public  provision 
made  for  the  poor;  the  reason  of  the  disqualification  being  equally 
applicable  in  both  cases. 

5.    Persons  convicted  of  certain  Crimes. 

50.  Convictions  of  certain  crimes  furnishes  so  obvious  a  ground 
of  disquafification,  both  as  a  punishment  for  crime,  and  as  con- 
ducing to  the  purity  of  elections,  that  it  is  expressly  inserted  as 
such,  for  the  crimes  therein  respectively  enumerated,  in  the  con- 
stitutions of  Rhode  Island,  Connecticut,  New  Jersey,  Delaware, 
Virginia,  Maryland,  Louisiana,  Wisconsin,  and  Cafifornia.  In  the 
constitutions  of  New  Jersey  and  Delaware,  it  is  further  provided, 
and  in  those  of  New  York,  Florida,  Tennessee,  and  Indiana,  it  is 
declared,  that  laws  may  be  passed  disqualifying  persons  convicted 

1  Mule  on  Elections,  290.  '  *  Male  on  Elections,  290. 

"  Sliirbri'lge  v.  Holland,  Pickering's  Re- 
ports, II.  459. 


22  LEGISLATIVE  ASSEMBLIES.  [PaRT   1. 

of  crimes,  from  exercising  the  right  of  suiEFrage.  Tnis  disqualifica* 
tion,  like  other  consequences  of  conviction,  w^ould  probably  be  held 
to  be  removed  by  the  exercise  of  the  ordinary  pardoning  power 
but  the  disqualification  is  to  continue,  by  the  ^constitution  of 
Rhode  Island,  until  the  party  is  expressly  restored  to  his  right  of 
suffrage  by  an  act  of  the  general  assembly ;  by  that  of  New 
Jersey  unless  he  is  pardoned  and  restored  by  law  to  the  right 
of  suffrage,  and  by  that  of  Wisconsin  restored  to  civU  rights. 

51.  The  conviction  mentioned  in  the  preceding  paragraph  must 
undoubtedly  have  taken  place  before  the  tribunals  of  the  State,  in 
which  the  convict  claims  a  right  to  vote,  according  to  the  laws  of 
such  State ;  but  by  the  constitution  of  Missouri  the  disqualifica- 
tion is  also  extended  to  persons  convicted  of  any  felonious  or 
infamous  crime  in  any  foreign  country  or  any  State  in  the  Union, 
or  who  are  become  fugitives  from  justice,  on  account  of  the  com- 
mission of  such  crime  ;  provided  it  be  not  one  of  a  political  nature, 
or  one  which  would  not  be  considered  felonious  or  infamous  in 
Missouri. 

52.  In  England,  it  seems,  that  conviction  of  any  crime  denomi- 
nated a  felony  disqualifies,  by  the  common  law  of  parliament ;  ^ 
but,  in  this  country,  where  the  word  felony  has  a  much  greater 
extent  and  variety  of  meaning,  such  a  conviction  would  not  proba- 
bly be  held  a  disqualification,  unless  expressly  so  provided  by  con- 
stitution or  law ;  ^  still,  in  the  case  of  conviction  for  any  offence, 
which  subjects  the  offender  to  confinement  as  a  punishment,  he 
would,  of  course,  in  the  mean  time,  while  such  imprisonment  lasted, 
be  precluded  from  exercising  the  right  of  suffrage  as  effectually  as 
if  he  was  thereby  disquahfied. 

6.   Persons  of  color. 

53.  The  constitutions  of  Connecticut,  New  Jersey,  Delaware, 
Maryland,  Pennsylvania,  Virginia,  South  Carolina,  Tennessee,  In- 
diana, Louisiana,  Mississippi,  Illinois,  Missouri,  Ohio,  Florida, 
Kentucky,  Michigan,  Arkansas,  Iowa,  Wisconsin,  California,  and 
Alabama,  among  the  terms  which  they  respectively  use  to  describe 
the  qualifications  of  electors,  employ  the  word  "  white ; "  while  the 
constitutions  of  New  York,  North  CaroUna,  Indiana,  Texas,  and 
Tennessee,  contain  provisions,  by  which  persons  of  color  are  vari- 
ously disquahfied,  in  express  terms.     In  order  to  present  the  subject 

Stidbury,  Phillips,  181, 189.  ^  jhis  is  the  case  by  the   constitution  of 

Delaware. 


Chap.  II  L]         persons  competent  to  be  elected.  23 

under  a  single  point  of  view,  these  provisions  may  all  be  enumerated 
under  the  head  of  disqualifications.  In  the  first-mentioned  States, 
therefore,  persons  who  are  not  white  ;  —  in  New  York,  men  of  color, 
except  under  certain  conditions  :  —  in  North  Carolina,  negroes,  mu- 
lattoes,  and  persons  of  mixed  blood  (that  is,  descended  from  negro 
ancestors,  to  the  fourth  generation  inclusive,  though  one  ancestor 
of  each  generation  may  have  been  a  white  person) ;  —  in  Indiana, 
negroes,  and  mulattoes ;  in  Texas,  Africans  and  the  descendants 
of  Africans ;  —  and,  in  Tennessee,  persons,  who,  by  reason  of  their 
color  or  descent,  are  not  competent  witnesses  in  a  court  of  justice 
against  a  white  man;  —  are  disqualified  from  being  electors.  In 
other  States,  in  some  of  which  Indians  ^  are  in  whole  or  partly  dis- 
qualified, color  affords  no  ground  of  disqualification. 

2,  3,  4,  7.    Other  Disqualifications. 

54.  In  Maine,  Rhode  Island,  and  Massachusetts,  persons  under 
guardianship  for  whatever  cause ;  —  in  Maine  and  Texas,  Indians 
not  taxed  ;  —  in  New  Hampshire,  persons  excused  from  taxation  at 
then-  own  request ;  —  in  Rhode  Island,  members  of  the  Narraganset 
tribe  of  Indians  ;  —  and,  in  New  Jersey,  Delaware,  Virginia,  Florida, 
Louisiana,  Indiana,  Illinois,  Arkansas,  Texas,  Iowa,  Missomi,  and 
Alabama,  persons  (sometimes  the  restriction  applies  only  to  those 
under  the  rank  of  officers)  in  the  naval  or  military  service  of  the 
United  States  ;  —  are  disqualified  from  being  electors.^ 


CHAPTER    THIRD. 

OF  THE  PERSONS   COMPETENT   TO   BE   ELECTED. 

55.  Eligibility  to  the  legislative  assemblies  of  the  States  or  of  the 
Union  depends  almost  entirely  upon  constitutional  provision;  it 
being  a  general  principle,  that  no  further  conditions  of  eligibility  can 
be  required  by  law  than  are  specified  in  the  constitution  under 
which  it  is  made,  but  for  the  reasons  ahready  suggested  in  regard  to 

»  See   BlMe    and  another  v.  Wing,  Clarke  of  the  several  States  may  have  escaped  no 

&  Hall,  504,  411.  tice;  but  those  above  given,  which  are  among 

a  It  is  not  improbable,  that  some  of  the  dis-  the  most  prominent,  are,  it  is  believed,  suffi- 

\ualific:itions  enumerated  in  the  constitutions  cient  for  the  purposes  of  this  work. 

4 


24  LEGISLATIVE   ASSEMBLIES.  [PaRT   I. 

the  competency  of  electors,  it  will  be  convenient  to  consider  the 
subject  of  eligibility  to  office,  first,  under  the  head  of  qualifications 
and  disqualifications  by  the  common  poHtical  law,  second,  under 
the  head  of  the  qualifications  required,  and,  third,  under  that  of  the 
disqualifications  specified,  by  the  several  State  constitutions. 


Section  I.  —  Of  Qualifications  and  Disqualifications  by  the 

Common   Political   Law. 

56.  The  same  descriptions  of  persons,  namely,  minors,^  idiots 
and  lunatics,^  women,'^  and  aliens,^  who  have  aheady  been  men- 
tioned as  excluded  from  the  right  of  suffi-age,  by  the  common  pohti- 
cal  law,  are  also  prohibited,  and  for  the  same  reasons,  from  being 
elected  to  any  pofitical  office  whatever.  Such  persons,  conse- 
quently, cannot  be  members  of  a  legislative  assembly,  even  in 
those  States  where  the  constitution  is  silent  with  reference  to  their 
eligibility. 

57.  It  may  also  be  laid  down  as  a  general  principle,  founded  in 
the  nature  of  representative  government,  which  supposes  the  electors 
except  in  particular  instances  to  elect  fi-om  among  themselves,  that 
no  person  can  be  elected  to  any  office,  who  is  not  himself  possessed 
of  the  requisite  qualifications  for  an  elector  ;  and,  consequently,  that 
whatever  other  and  different  quafifications  or  disqualifications  may 
be  specffied,  every  person,  who  is  voted  for  as  a  member  of  a  legis- 
lative assembly,  must  at  all  events  possess  the  qualifications  and 
be  free  from  the  disquahfications  which  attach  to  the  character  of 
an  elector.'^  In  the  States  of  Connecticut,  New  Jersey,  Wisconsin, 
Louisiana,  Ohio,  California,  and  Rhode  Island,  the  electors  and 
elected  are  expressly  put  upon  the  same  footing  as  to  quahfications. 
In  almost  all  the  constitutions,  the  qualifications  of  members  of  the 
legislature  are  particularly  specified.  Where  these  quahfications 
are  of  the  same  nature  with  those  requked  of  an  elector,  either 
wholly  or  in  part,  the  latter  are  of  course  superseded  to  the  same 
extent ;  as,  for  example,  where  residence  is  required  as  a  quahfica- 
tion  both  to  elect  and  be  elected,  but  different  periods  of  time  are 
prescribed  in  the  two  cases.  • 

58.  In  England,  minors  have  frequently  been  chosen  and  returned 
members  of  the  house  of  commons,  and  their  election  as  frequently 

1  Flintshire,  Peckwell,  I.  528.      See   ante,         *  Ante,  ^  32. 
\  25,  26.  ^  See  the  constitutions  of  Vermont  and  Mas* 

*  Ante,  §  27,  28.  sachusetts;  — Amer.  Const.  71,  78,  87. 

»  Ante,  §  29,  30,  31. 


Chap.  III.]  persons  competent  to  be  elected.  25 

declared  void.  Party  or  caprice,  however,  somotimes  adopted  a 
different  doctrine,  and  allowed  them  to  sit ;  till  at  length,  tlu;  (pies- 
tion  was  settled  by  a  statute  passed  in  the  7  and  8  of  William  111., 
by  which  minors  under  the  age  of  twenty-one  were  declared  ineligi- 
ble and  their  election  void.  Notwithstanding  this  statute,  however, 
minors  have  been  since  occasionally  returned  as  members  of  the 
house  of  commons,  and  have  been  permitted  to  sit  without  com- 
plaint. The  great  orator  and  statesman,  Charles  James  Fox,  was, 
it  is  said,  under  age  when  he  first  became  a  member  of  the  house 
of  commons ;  but  though  he  participated  in  the  debates,  he  is  said 
not  to  have  voted,  untU  after  he  had  attained  the  legal  age.  Other 
instances  of  minors  sitting  as  members  have  doubtless  occurred, 
both  in  England  and  in  this  country. 

59.  In  England,  also,  there  have  been  conflicting  resolutions  of 
the  commons,  in  regard  to  the  eligibility  of  persons  in  holy  orders ; 
but  for  the  most  part,  such  persons  have  been  declared  incapable  of 
sitting.  The  question  was  very  fully  considered  in  1801,  in  the 
case  of  John  Home  Tooke,  who  having  been  returned  a  member 
was  objected  to,  as  being  in  priest's  orders.  A  committee  was 
thereupon  appointed  to  examine  the  journals  and  records,  for  pre- 
cedents; and,  upon  their  report,  and  a  motion  made,  that  the 
reverend  John  Home  Tooke,  "  being  at  the  time  of  his  election  in 
priest's  orders,  was  and  is  incapable  of  sitting  "  as  a  member,  the 
motion  was  negatived.  An  act  of  parliament  was  thereupon 
passed,  in  order  to  remove  all  doubts,  by  which  it  was  declared,  that 
no  person,  having  been  ordained  a  priest  or  deacon,  or  being  a 
minister  of  the  Church  of  Scotland,  shall -be  capable  of  being  elected 
a  member  of  the  house  of  commons.  The  reason  for  passing  this 
statute  can  scarcely  have  been  any  supposed  incompetency  of  per- 
sons in  holy  orders,  for  the  performance  of  legislative  duties  ;  seeing 
that  the  higher  dignitaries  of  the  church  have  an  equal  place  among 
the  hereditary  legislators  of  the  land;  but  is  rather  to  be  found,  in 
the  fact,  that  a  proper  attendance  upon  their  parliamentary  duties 
would  necessarily  interfere  with  and  prevent  the  discharge  of  those 
higher  duties  which  belong  to  the  solemn  trust  reposed  in  them  for 
the  cure  of  souls.  In  this  country  there  are  several  of  the  States, 
as  for  example,  Maryland,  North  Carolina,  South  Carolina,  Ken- 
tucky, Missouri,  and  Texas,  in  which  ministers  of  religion  are 
excluded  from  the  legislative  function ;  and,  unless  expressly  ex- 
cluded, such  persons  are  clearly  eligible,  and  have  frequently  been 
returned  as  members,  and  have  sat  as  such,  both  in  the  legislative 
assemblies   of  the  States  and  in  congress.      In  Massachusetts,  it 


26  LEGISLATIVE   ASSEMBLIES.  [PaKT   L 

was  attempted,  in  the  year  1788,  but  without  success,  to  set  aside 
the  election  of  a  minister  of  the  gospel,  as  a  member  of  the  house 
of  representatives,  on  the  ground,  that  those  who  impose  taxes  upon 
the  people  ought  to  be  those  only  who  pay  a  proportion  of  those 
taxes,  which  ministers  of  the  gospel  were  not  then  obliged  to  do.^ 

60.  Idiots  and  madmen,  according  to  the  English  authorities,  are 
clearly  ineHgible,  as  having  no  judgment,  and  are  therefore  incapa- 
ble of  executing  the  trust  of  a  member  ;2  but  lunatics,  that  is, 
persons  whose  insanity  is  subject  to  periodical  intermissions,  are 
eligible  during  their  lucid  intervals.'^  Deaf  and  dumb  persons  are 
also  said  to  be  ineligible ;  '^  but  this  must  be  considered  as  doubtful, 
since  the  great  improvements  which  have  been  made  in  modern 
times  in  the  education  of  the  deaf  and  dumb.  Persons  who  are 
totally  blind  are  not,  for  that  reason,  ineligible ;  and  many  such  per- 
sons have  sat  in  parliament,  as  well  as  in  the  legislative  assemblies 
of  this  country. 


Section  II.     Of  Qualifications  expressly  required. 

61.  The  following  are  the  various  qualifications  prescribed  by  the 
constitutions  of  the  several  States  and  of  the  United  States,  the  pos- 
session of  one  or  more  of  which  is  necessary  to  qualify  a  person  for 
election  as  a  member  of  a  legislative  assembly,  namely :  1st,  citizen- 
ship for  a  certain  period;^  2d,  arrival  at  a  certain  age;  3d,  resi- 
dence within  the  State  for  a  certain  period,  and,  for  a  part  thereof, 
within  a  particular  district ;  *^  4th,  the  possession  of  a  freehold,  or 
other  specified  property  of'a  certain  value;  and,  5th,  payment  of  a 
tax.  As  these  qualifications  have  already  been  considered,  in  refer- 
ence to  electors,  it  will  only  be  necessary  to  caU  attention  to  one  or 
two  particulars,  having  reference  to  their  application  to  the  compe- 
tency of  persons  to  be  elected. 

62.  In  England,  residence  within  the  constituency  to  be  repre- 
sented has  not  been  for  a  long  period  deemed  necessary  to  quahfy 
one  for  election  to  the  house  of  commons ;  though  an  ancient 
statute  (1  Henry  V.,  c.  1 ;  23  Henry  VI.,  c.  15,)  which  was  not 
repealed  until  the  14  George  III.,  c.  58,  (1774,)  required,  that  none 
but  residents  in  the  counties,  cities,  and  boroughs  where  they  are 

1  Grny,  Cushinj?,  S.  &  J.,  28.  *  Male  on  Elections,  34. 

»  Whitelocke,  I.  461.  6  See  Earnsay  \.  Smith,  Clarke  &  Hall,  23; 

*  Hr.le  on  Parliaments,  116;  Grampourul,  29  Case  of  Albert  GnUatin,  Same,  851. 

Oct.  1566;  D'Ewes,  126;  Rogers  on  Elections,  «  See  Case  of  Phillip  B.  Key.  Clarke  &  Hall, 

48;  Male  on  Elections,  34.  224;  and  Case  of  John  Bayley,  Same,  411. 


Chap.  IIL  persons  competent  to  be  elected.  27 

chosen,  should  be  elected ;  but  this  law  had  been  long  disregarded, 
and  says  Whitelocke,  "by  time  and  connivance  to  contrary  prac- 
tice, is  become  as  if  it  had  not  been  made." 

63.  This  dispensation  with  the  requisition  of  residence  enables 
constituencies  to  select  their  members  from  any  part  of  the  king- 
dom ;  in  consequence  of  which,  it  frequently  happens,  that  the 
same  person  is  elected  and  returned  for  two  or  even  more  different 
places.  When  this  occurs,  the  member  makes  his  election,  soon 
after  the  house  assembles,  for  which  of  these  places  he  will  serve ; 
and  a  new  election  takes  place  for  the  other.  But  a  member  can 
only  be  thus  chosen  for  two  or  more  places  on  the  occasion  of  a 
general  election,  when  all  the  elections  are  going  on  at  the  same 
time  and  none  of  the  persons  elected  are  as  yet  returned ;  for  as 
soon  as  a  member  is  returned,  he  is  considered  as  the  representative 
of  the  whole  people,  as  well  as  of  the  particular  constituency  by 
which  he  is  retm-ned;  and,  hence,  when  a  special  election  takes 
place  to  fill  a  vacancy,  although  the  constituency  may  elect  its 
member  without  regard  to  residence,  yet  a  person  aheady  returned 
is  not  eligible. 

64.  The  constitution  of  the  United  States  requires  that  repre- 
sentatives and  senators  should  reside  within  the  State  for  which 
they  are  chosen ;  and  the  constitutions  of  the  several  States,  except 
South  Carolina,  that  members  of  the  legislature  should  reside 
within  the  district  or  place,  which  they  are  chosen  to  represent. 
In  South  Carolina  it  is  only  necessary  that  members  should  reside 
within  the  State.  This  is  the  only  State,  it  is  believed,  in  which 
the  members  of  its  legislative  assemblies  are  not  required  to  reside 
within  the  constituencies  for  which  they  are  elected.^ 

65.  The  constitution  of  the  United  States  having  prescribed  the 
qualifications  required  of  representatives  in  congress,  the  principal 
of  which  is  inhabitancy  within  the  State  in  which  they  shall 
respectively  be  chosen  ;  leaving  it  to  the  States  only  to  prescribe  the 
time,  place,  and  manner  of  holding  the  election ;  it  is  a  general 
principle,  that  neither  congress  nor  the  States  can  impose  any 
additional  qualifications.  It  has  therefore  been  held,  in  the  first 
place,  that  it  is  not  competent  for  congress  to  prescribe  any  further 
qualifications,  or  to  pass  any  law  which  shall  operate  as  such. 
Upon  this  ground,  it  has  been  decided  by  the  house  of  representa- 

1  In  the  convention,  -which  was  called  in  of  the  most  distinguished  of  its  merabei-s  were 

1853,  to  revise  the  constitution  of  Massachu-  elected  by  and  sat  for  constitucnc-'es,  in  which 

Bctt?,  and  which  depended  entirely  upon  a  law  thej'  did  not  reside. 
of  the  previous  year  for  its  existence,  uumy 


28  LEGISLATIVE    ASSEMBLIES.  [PaRT   I. 

tives  in  congress,  that  a  clause  in  the  apportionment  law  of  June 
25,  1842,  which  required  that  each  State  should  first  be  districted 
for  the  piupose,  and  that  elections  should  take  place  in  the  dis- 
tricts, respectively,  was  void,  and  that  elections  by  general  ticket 
therein  were  vahd.^ 

66.  It  has  been  decided  also,  upon  the  same  principle,  that  it  is 
not  competent  for  any  State  to  add  to  or  alter  them ;  '^  and,  there- 
fore, where  a  ]aw  of  the  State  of  Maryland,  by  which  it  was 
provided,  that  two  representatives  should  be  chosen  from  a  par- 
ticular district,  required  also  that  one  of  them  should  reside  in  one 
part  of  the  district,  and  the  other  in  another  part,  the  requisition  as 
to  residence  was  held  void  by  the  house  of  representatives.^ 

67.  The  quahfications  of  an  elector  are,  in  general,  referrible  to 
the  time  when  the  lists  of  votes  are  prepared,  or  when  the  right  of 
suf&age  is  to  be  exercised.  Those  of  a  member,  which  are  expressed 
in  a  great  variety  of  forms,  sometimes  relate  to  the  time  of  election ; 
sometimes  to  that  of  exercising  the  functions  of  membership  ;  and 
are  sometimes  required  by  reason  of  their  nature,  or  of  some  express 
provision,  to  continue  during  the  whole  period  of  membership. 

68.  Where  the  language  used  is,  that  "  no  person  shall  be  a 
representative  or  senator,"  as  in  the  constitutions  of  the  United 
States,  Maine,  and  many  others,  "  shall  be  entitled  to  a  seat,"  or 
"  shall  be  a  member  unless,  &c.,"  as  in  the  constitution  of  Missouri ; 
—  in  these  cases,  the  point  of  time,  to  which  the  qualifications  thus 
alluded  to  are  to  be  referred,  is  that  of  being  qualified  and  assum- 
ing the  functions  of  a  member. 

69.  The  following  phrases,  namely :  — "  any  person  may  be 
elected,"  as  in  the  constitution  of  Vuginia ;  —  "no  person  shaU  be 
capable  of  being  elected,"  as  in  those  of  New  Hampshire  and 
Vermont; — "when  elected,"  as  in  the  constitution  of  the  United 
States ;  —  "at  the  time  of  his  election,"  as  in  that  of  Kentucky ;  — 
"  no  person  shaU  be  eligible  to  a  seat  in  the  house  unless,  &c.,"  as 
in  that  of  South  Carolina ;  refer  the  time  of  the  qualification,  in 
connection  with  which  they  are  used,  to  the  day  of  the  election. 

70.  Where  the  qualification  of  a  particular  age  is  described  by 
the  terms  —  "  attained  to  the  age  of,"  as  in  the  constitutions  of  the 
United  States,  Virginia,  Mississippi,  and  Alabama;  —  "anivedat 
the  age  of,"  as  in  that  of  Maine ; — "  not  of  the  age  of,"  as  in  that 

1  See   Cong.   Globe,  XV.  30;    Same,   XIII.      the  districts  for  which  they  nre  respectively 
173,  276.  elected ;  and  this  requisition  has  hitherto  been 

2  The  law  of  Massachusetts  requires  that     complied  with. 

members  of  congress  shall  be  inhabitants  of  *  Barney  v.  McCreery,  Clarke  &  Hall,  167. 


Chap.  III.]  persons  competent  to  be  elected.  29 

of  New  Hampshire  ;  — "  shall  not  have  attained  the  age  of,"  as  in 
those  of  Georgia,  Kentucky,  Tennessee,  Louisiana,  Illinois,  Mis- 
souri, Delaware ;  the  qualification  is  completed  on  the  day  of 
attaining  the  age  prescribed;  but,  where  the  expression  is,  "above 
the  age  of,"  as  in  the  constitution  of  Maryland,  the  qualification  is 
not  complete,  until  the  day  of  attaining  the  given  age  has  expired. 

71.  Where  citizenship,  residence,  possession  of  property,  or  any 
other  qualification  is  required  for  a  certain  number  of  years,  "  pre- 
ceding," or  "  next  preceding,"  or  "  above  [so  many]  years  next 
preceding,"  or  "  previous  to  "  the  election  or  some  other  event,  the 
day  of  that  event  is  to  be  excluded. 

72.  The  term  "  usually,"  in  the  phrase  "  shall  have  usually 
resided,"  seems  to  be  wholly  unnecessary ;  the  qualifying  force 
of  it  being  included  in  the  idea  of  residence. 

73.  In  several  of  the  constitutions  a  clause  is  inserted,  that 
residence  shaU  not  be  effected  by  an  absence  from  the  State,  on 
business  of  the  State,  or  of  the  United  States ;  (the  constitution  of 
Mississippi  adds,  or  on  a  visit  or  necessary  private  business ;)  but 
this  exception  can  hardly  have  been  provided  for  any  other  reason 
than  out  of  abundant  caution ;  as,  by  the  law  of  natione,  persons 
temporarily  absent  from  the  place  of  their  residence,  on  public  (or 
even  private)  business,  do  not  thereby  incur  the  loss  or  even  suspen- 
sion of  their  domicil.^ 

74.  In  reference  to  electors,  it  seems  to  be  immaterial,  if  they  are 
duly  qualified  on  the  day  on  which  they  give  their  suffrage,  whether 
they  continue  to  be  so  afterwards  or  not.  In  reference  to  persons 
elected  members  of  a  legislative  assembly,  to  remain  in  office  .for  a 
certain  time,  there  seems  to  be  as  much  reason  for  requiring  tliat 
they  should  continue  to  be  duly  qualified  during  the  whole  of  the 
term,  as  that  they  should  have  possessed  the  requisite  qualifications 
at  the  time  of  their  election.  But,  unless  there  is  an  express  pro- 
vision to  that  effect,  it  does  not  seem  to  be  necessary  that  the 
qualifications  of  members  should  continue.^ 

75.  The  property  qualification,  though  generally  given  up  as  to 
electors,  still  exists  in  some  of  the  States,  as  to  the  persons  to  be 
elected.  In  Massachusetts,  until  a  recent  amendment  of  the  con- 
stitution, every  member  of  either  branch  was  required  to  possess  a 
certain  amount  of  estate.     But  this  qualification  was  practically  of 

1  Case  of  John  Bailey,  Clarko  &  Hall,  44;  senators)  and  New  Hampshire,  it  is  expressly 

(hse  of  John  Forsyih,  Clarke  &  Hall,  497.  provided,  that  the  qualification  of  residence,— 

•  Story  on  the    Constitution,  HI.  95.     In  and  in  North  Carolina,  that  of  property,— 

Maine,  Massachusetts,  Pennsylvania  (as   to  shall  continue  during  the  term. 

8* 


.30  LEGISLATIVE  ASSEMBLIES.  [PaRT    L 

little  effect,  in  consequence  of  the  difficulty  of  proof ;  it  being  held, 
that  the  burden  of  proof  was  in  all  cases  upon  those  who  questioned 
the  member's  qualification,  and  that  no  member  ought  to  be  called 
upon,  in  the  first  instance,  to  prove  himself  a  qualified  member, 
according  to  the  constitution.^  In  England,  where  a  property  quali- 
fication is  required  of  members  of  parliament,  the  difficulty  of 
proof  is  obviated,  by  making  it  the  duty  of  every  member,  when  he 
takes  the  oath,  to  deliver  in  at  the  same  time,  a  declaration  accom- 
panied by  a  specification  of  his  qualification  as  to  property.  With- 
out such  declaration,  no  member  is  at  liberty  to  sit  or  vote  ;  and  a 
false  declaration  is  punishable  as  a  misdemeanor. 


Section  III. —  Of  Disqualifications  expressly  declared. 

76.  Besides  the  negative  disqualifications  resulting  from  the  want 
of  the  requisite  qualifications,  the  several  constitutions  enumerate 
many  others  of  a  positive  character ;  but  as  they  are  altogether  too 
numerous  to  be  examined  in  detail,  it  will  be  most  convenient  to 
consider  them  in  two  classes;  first,  those  which  result  from  the 
holding  of  an  office,  or  from  an  employment  or  profession,  the  func- 
tions of  which  are  deemed  incompatible  with  the  duties  of  a  mem- 
ber ;  and,  second,  those  which  are  of  a  personal  nature,  and  peculiar 
to  the  individual. 

77.  The  offices  and  employments,  the  possession  or  exercise  of 
which  disqualifies  one  from  being  chosen  or  acting  as  a  member  of 
a  legislative  assembly,  are  particularly  enumerated  in  the  several 
constitutions.  In  the  constitution  of  the  United  States  the  only 
provision  of  this  kind  is,  that  no  person  shall  be  a  representative 
who  shall  not  have  attained  to  the  age  of  twenty-five  years,  and 
been  seven  years  a  citizen  of  the  United  States,  and  who  shall  not 
when  elected  be  an  inhabitant  of  that  State  in  which  he  shall  be 
chosen.  The  State  constitutions  enumerate,  sometimes  in  much 
detail,  three  classes  of  official  persons  whom  they  interdict,  in  some 
form  or  other,  from  legislative  functions,  namely,  all  persons  exer- 
cising or  possessing  offices  under  the  authority  of  the  United  States, 
and  all  persons  connected  with  the  executive  or  judicial  department 
of  the  government  of  each  particular  State.  In  England,  persons 
connected  with  the  administration  of  the  executive  branch  of  the 
government  always  have  seats  in  one  or  the  other  of  the  houses  of 

1  Pembroke,  Gushing,  S.  &  J.,  22,  note. 


Chap.  III.]         persons  competent  to  be  elected.  31 

parliament;  in  this  country,  such  persons  are  carefully  excluded 
from  legislative  functions.  This  difference  between  the  constitution 
of  parliament  and  that  of  the  legislative  assemblies  of  this  country 
has  led  to  important  differences  in  the  parliamentary  practice  of  the 
tw^o  coimtries,  to  which  allusion  will  be  made  in  another  place. 

1.   Disqnalifi/ing-  Offices  or  Employments. 

78.  Disqualifications  of  this  kind  result  from  the  holding  of  cer- 
tain offices,  or  from  the  exercising  of  certain  employments,  commis- 
sions, and  professions,  the  functions  of  which  are  deemed  incom- 
patible with  the  proper  discharge  of  the  duties  of  a  member,  but  of 
which  one  may  divest  himself  at  pleasure,  and  which  are  therefore 
relative  rather  than  absolute.  In  general,  as  these  disqualifications 
are  not  derived  from  the  personal  character  of  the  individual,  or 
inflicted  by  way  of  punishment,  they  do  not  render  him  ineligible, 
that  is,  incapable  to  be  elected,  but  prevent  him  from  assuming  the 
functions  of  a  member  until  they  are  removed.^  But  this  depends 
upon  the  language  used  in  reference  to  each  particular  disqualifica- 
tion, and  the  time  to.  which  it  relates.  Thus,  where  it  is  said, 
that  no  person,  holding  a  particular  office,  &c.,  "  shall  have  a 
seat;" — "shall  be  a  member;"  —  "shall  at  the  same  time  have  a 
seat ; "  —  "  shaU  hold  a  seat ; "  —  "  shall  be  capable  of  having  a 
seat ; "  —  "  shall  be  capable  of  being  a  member ; "  —  "  shall  be  capa- 
ble of  holding  any  office ; "  —  "  shall  act  as  a  member ; "  the  dis- 
qualification relates  to  the  time  of  assuming  the  functions  of  a 
member; 2  but  where  the  following  terms  are  used,  namely, — 
"  shall  be  incapable  of  being  elected ; "  — "  shall  be  eHgible  to  a 
seat ; "  —  "  shall  be  eHgible  as  a  candidate  for ; "  —  "  shall  be  ineli- 
gible ; "  the  disqualification  relates  to  the  time  of  the  election. 

79.  The  offices,  which  are  most  usually  declared  in  express  terms 
to  be  incompatible  with  the  functions  of  legislation,  are  those  of  a 
judicial  character.     It  may  perhaps  be  doubted,  whether  such  a 

,  declaration  is  necessary.  The  separation  of  the  several  departments 
of  government  from  one  another  is  in  this  country  so  fundamental 
and  essential,  that  a  judge,  at  least,  of  any  of  the  higher  courts, 
would  hardly  be  considered  eHgible  to  the  legislature,  although  not 
expressly  excluded.  In  England,  the  judges  of  the  higher  courts 
are  excluded  from  being  members  of  the  house  of  commons,  on 

1  PayBter's  Practice  at  Elections,  55;  Doug-     297;  Case  of  Elias  Earle,  Same,  314;   Case  of 
»ss,  I.  143 ;  Douglass,  II.  450.  George  Mumford,  Same,  316 ;  Sullivan,  Cush- 

*  See  Hammond  v    Herrick,  Clarke  &  Hall,      ing,  S.  &  J.,  39. 


32  LEGISLATIVE  ASSEMBLIES.  [PaRT   I. 

account  of  their  being  required  to  attend  as  assistants  in  the  house 
of  lords  ;  and  for  the  further  reason,  that  their  judicial  functions  are 
considered  as  incompatible  with  the  character  of  representatives  of 
the  people.  They  are  not,  however,  expressly  excluded  by  any 
statute,  and  the  exclusion  does  not  apply  to  aU  persons  who  exer- 
cise judicial  functions. 

2.   Personal  Disqualifications. 

80.  This  description  of  disqualifications  results  either  from  the 
doing  of  some  act  of  a  criminal  nature,  as,  in  Tennessee,  duelling 
and  bribery,  and,  in  Mississippi,  denying  the  being  of  a  God,  or  a 
future  state  of  rewards  and  punishments,  or  from  the  conviction  of 
some  crime  or  offence,  which,  by  the  constitution  alone,  or  the 
constitution  and  laws^  of  a  State,  is  declared  to  be  a  ground  of 
exclusion  from  a  seat  in  the  legislature.  In  some  of  the  States,  it 
is  the  commission  of  the  crime  which  disqualifies ;  in  others  and 
the  greater  part,  a  conviction  is  also  necessary.  The  offence, 
which,  more  commonly  than  any  other,  is  made  a  disqualification, 
is  that  of  bribery  in  obtaining  an  office  or  appointment. 

81.  It  seems  to  be  immaterial,  in  regard  to  personal  disqualifi- 
cations, whether  the  time  to  which  they  refer  is  that  of  the 
election,  or  that  of  assuming  the  functions  of  a  member ;  inas- 
much, as  they  are  not  in  the  power  of  the  party  himself,  and 
cannot  be  put  off  at  pleasure.  Where  they  are  inflicted  as  a 
punishment,  the  exclusion  is  either  perpetual  or  for  a  time 
limited.^  In  the  latter  case,  the  disability  is,  of  course,  removed  by 
the  expiration  of  the  time ;  in  both  cases,  it  may,  in  general,  be 
entirely  abrogated  by  a  pardon. 

82.  Expulsion,  from  a  former  or  from  the  same  legislative 
assembly,  cannot  be  regarded  as  a  personal  disqualification,  unless 
specially  provided  by  law.^ 

83.  In  concluding  the  subject  of  disqualifications,  it  is  proper  to 
remark,  that  no  person  is  excluded  from  being  elected,  by  reason . 
of  his  not  being,  at  the  time  of  the  election,  in  a  situation  to 
assume  or  perform  the  functions  of  a  member;  thus,  one  who  is 
temporarily  absent  from  the  country,  or  is  sick,  or  imprisoned, 

» In  some  of  the  States,  authority  is  ex-  a  perpetual,  but,  in  others,  only  a  temporary, 

pressly  given  by  the  constitution  to  the  legis-  disqualification.     Where  disqualification  fol- 

iative  power,  to  inflict  disqualification  as  a  lows  a  conviction  on  impeachment,  it  may  be 

punishment  for  certain  crimes.  either  for  a  time  or  perpetual. 

2  In  most  of  the  States,  a  conviction  of  brib-  *  See    WiUcei'a  CV/se,  Male  on  Elections,  46; 

ery,  in  obtaining  an  office  or  appointment,  is  Rogers  on  Elections,  76. 


Chap.  IV.]  mode  of  election.  33 

either  for  debt,  or  as  a  punishment,  may  nevertheless  be  elected, 
and  may  take  upon  himself  the  functions  of  a  member,  when  he 
returns,  or  recovers,  or  is  discharged  from  his  confinement.  One 
who  is  imprisoned  for  debt,  either  on  mesne  process,  or  in  execu- 
tion, may  not  only  be  elected  but  will  be  entitled  to  be  discharged 
from  his  imprisonment  for  the  purpose  of  attending  his  duty  as  a 
member.! 

84.  It  seems  necessary  also  to  remark,  that  a  member  may  be 
expelled,  or  discharged  from  sitting,  as  such,  which  is  the  same 
thing  in  milder  terms,  for  many  causes,  for  which  the  election 
could  not  be  declared  void.^ 


CHAPTER  FOURTH. 

OF   THE  MODE   OF   ELECTION. 

85.  The  convening  of  a  parliament  in  Great  Britain  is  a  branch 
of  the  royal  prerogative,  to  be  exercised  by  the  sovereign,  at  his 
pleasure ;  the  only  restriction  put  upon  it  by  law  being,  that  no  par- 
liament can  last  for  a  longer  period  than  seven  years,  and  that  the 
sovereign  cannot  allow  a  greater  period  than  three  years  to  elapse 
between  the  dissolution  or  expiration  of  one  parliament  and  the 
calling  of  another  ;  and,  when  the  calling  of  a  parliament  is  deter- 
mined upon  by  the  king  in  council,  a  royal  proclamation  is  issued, 
directing  the  lord  chancellor  to  summon  the  peers,  and  to  send  out 
writs  for  the  election  of  members  of  the  house  of  commons.^  The 
writs  being  sent  out  accordingly  to  the  sheriffs  of  the  several 
counties,  those  officers  issue  precepts  to  the  proper  officers  of  the 
cities  and  boroughs,  within  their  several  counties,  for  the  election 
of  members  therein,  and  proceed  themselves  to  call  county  meet- 
ings for  the  election  of  members  for  their  several  counties.  The 
legislative  assemblies  of  the  colonies  and  provinces  belonging  to 
the  British  Empire  are  convened  in  the  same  manner  by  their 
local  governors. 

86.  In  this  country,  the  place  of  royal  prerogative  is  supplied,  so 

'  This  subject  will  be  considered  at  length,     treating  of  the  expulsion  of  a  membei  as  a 
inder  the  head  of  privilege.  punishment. 

•  This  subject  will  be  again  adverted  to  in         '  Appendix,  IL 


34  LEGISLATIVE   ASSEMBLIES.  [PaRT    I. 

far  as  analogous  powers  exist  in  our  governments,  by  written 
constitutions  which  generally  prescribe  the  time  for  the  election,  as 
well  as  for  the  meeting,  of  the  legislative  assemblies.  The  election 
of  the  members  being  also  provided  for  and  regulated  by  the 
constitutions  and  laws,  the  municipal  officers  appointed  for  the 
purpose  take  the  proper  measures  for  effecting  the  election,  in 
the  manner  required  by  law,  without  any  previous  command  or 
warrant  from  any  other  authority,  but  merely  in  the  regular  dis- 
charge of  their  official  duties. 

87.  The  duties  of  these  officers  consist  in  preparing  beforehand, 
(where  required  by  law,)  the  lists  or  registers  of  the  qualified  voters, 
—  in  notifying  the  times  and  places  for  the  meetings  of  the  elec- 
tors,—  in  receiving,  counting,  and  declaring  the  votes,  —  in  deciding 
whether  any  and  who  among  the  persons  voted  for  are  elected, — 
and  in  returning  or  certifying  the  election  of  the  members  chosen.^ 
In  some  of  the  States  and  in  reference  to  certain  elections,  these 
duties  are  all  performed  by  the  same  set  of  officers ;  in  others,  they 
are  distributed  among  several.^ 

88.  It  would  not  be  practicable,  within  the  limits  of  this  work, 
to  present  a  complete  view  of  the  election  laws  even  of  a  single 
State ;  nor  does  the  subject  require  more  than  a  statement  of  some 
of  the  leading  principles,  which  are  or  may  be  common  to  all  sys- 
tems. It  will  be  sufficient,  therefore,  to  consider  briefly :  1st,  the 
right  to  vote ;  2d,  the  different  modes  of  voting ;  and  3d,  the  prin- 
ciple upon  which  the  result  of  an  election  is  to  be  determiaed. 

Section  I.     Of  the  Right  to  Vote. 

89.  Every  person,  possessing  the  qualifications  required  by  the 
constitution  and  laws  of  the  State  in  which  he  resides,  and  not  dis- 
qualified thereby,  has  a  right  to  give  his  vote  at  all  elections  for 
whomsoever  he  pleases,  whether  a  candidate  or  not,  and  whether 
eligible  or  not ;  ^  but,  in  order  to  entitle  any  one  to  exercise  this 
right,  it  is  necessary  that  he  should  have  previously  done  every- 
thing incumbent  upon  him  by  the  laws,  either  in  getting  his  name 
inscribed  on  the  list  of  qualified  voters,  or  in  establishing  his  right 
by  proper  evidence  at  the  polls.  • 

1  Such  neglect  of  duty,  or  abuse  of  official  judicial  capacity ;  in  the  former,  in  receiving 

authority,  as  will  be  sufficient  to  set  aside  an  the  votes  and  returning  the  persons  elected; 

election,  will  be  treated  of  further  in  the  sec-  in  the  latter,  in  detennining  questions  relating 

tion  on  controverted  elections.  to  the  right  to  vote,  and  in  deciding  upon  the 

*  In  the  performance  of  them,  the  officers  result  of  the  elections. 

act  partly  in  a  ministerial,   and  partly  in   a  ^  Male  on  Elections,  30,  note. 


Chap.  IV.]  mode  of  election.  35 

90.  If  an  elector,  therefore,  having  a  legal  right  to  vote,  and 
having  done  every  thing  incumbent  on  him  to  entitle  him  to  exer- 
cise his  right,  is  wilfully  and  maliciously  prevented  from  voting,  by 
the  officers  whose  duty  it  is  to  receive  his  vote,  he  may  maintain 
an  action  on  the  case  for  damages  against  such  officers ;  on  the 
general  ground,  that,  wherever  the  common  law  gives  a  right,  or 
prohibits  an  injury,  it  also  gives  a  remedy  by  action. • 

91.  Equality  being  essential  to  the  right  of  suffrage,  that  is  to  say, 
each  qualified  voter  being  the  equal  in  point  of  right  of  every  other 
voter,  whatever  difference  there  may  be  in  other  respects  between 
them,  no  person  can  be  permitted  to  give  more  than  one  vote  at  the 
same  election.  K  a  second  vote  is  given,  it  will  not  only  be  void, 
but  if  given  knowingly  and  corruptly,  will,  in  most,  probably  in  all 
the  States,  subject  the  voter  to  punishment.  The  rule  is  the  same, 
whether  there  is  only  one  person  to  be  elected,  or  whether  t^vo  or 
more  persons  are  to  be  chosen  at  the  same  time.  In  the  latter  case, 
each  elector  must  vote  for  all  the  persons  who  are  to  be  chosen,  or 
as  many  of  them  as  he  pleases,  by  one  and  the  same  act ;  he  can- 
not be  permitted  to  give  his  vote  first  for  one,  and,  after  some  inter- 
val, to  come  again  to  the  polls,  and  vote  for  another ;  such  a  mode 
of  voting  by  instalments  would  introduce  the  utmost  confusion.^ 

92.  This  principle  is  only  applicable  to  the  same  trial  or  attempt 
to  elect ;  for  if  no  election  is  effected  at  the  first  trial,  and  a  second 
attempt  takes  place,  or  a  new  election  is  ordered,  electors  may 
not  only  vote  again,  but  give  their  vote  for  a  different  or  even 
opposing  candidate ;  ^  nor  in  case  of  an  equality  of  voices,  have 
returning  officers,  as  such,  any  right  to  vote  a  second  time,  and  give 
a  casting  vote,  in  order  to  determine  the  election,  or,  which  is  the 
same  thing,  to  return  one  of  the  candidates  in  preference  to  the 
other.  This  authority  may  be  conferred  upon  returning  officers,  as 
it  is  by  the  constitution  of  Missouri  in  regard  to  elections  of  sheriff 
and  coroner,  by  the  constitution  or  laws  of  their  State  ;  but  if  no 
such  authority  is  given  them,  retm-ning  officers,  if  qualified  as  elec- 
tors, vote  merely  as  such. 

93.  Where,  however,  several  persons  are  to  be  chosen  at  the 
same  time,  unless  there  is  some  express  provision  of  law  to  the 
contrary,  or  it  is  manifestly  impracticable  from  the  nature  and  situa- 
tion of  the  constituency,  or  by  reason  of  other  circumstances,  there 
is  nothing  to  prevent  the  election  of  several  persons  fi-om  being 

'  Appendix,  III.  tioiis,  136;  Draper  v.  Johnston,  Clarke  &  Hall, 

'   Briil;itwa(er,   Peckwell,   I.   109;    Comm.      703. 
four.  Xlil.90;  Same,  XV.  135;  IMale  on  Elec-         »    IFTwc/it/i-i'nr,  Glanville,  21. 


36  LEGISLATIVE   ASSEMBLIES.  [PaRT   L 

made  separately ;  and  where  there  is  any  doubt  as  to  the  number 
of  persons  to  be  elected,  it  is  exceedingly  important,  if  it  can  be 
done,  that  they  should  be  so  elected ;  for,  where  more  persons  are 
chosen  and  returned  than  a  constituency  is  entitled  to  elect,  if  they 
are  all  chosen  at  once,  the  whole  election  will  be  void ;  ^  but  if 
chosen  separately,  the  election  of  those  only  will  be  void,  who  are 
chosen  after  the  proper  number  has  been  elected.-  The  reason  is, 
that  in  the  first  case,  it  is  impossible  to  discriminate  among  the 
persons  elected,  and  to  assign  the  election  to  any  of  them,  in  pref- 
erence to  the  others ;  ^  whereas,  in  the  case  of  separate  elections, 
the  right  of  the  constituency  being  exhausted,  when  the  requisite 
number  has  been  elected,  aU  the  further  proceedings  are  merely 
nugatory. 


Section  II.     Of  the  different  Modes  of  Voting. 

94.  Of  aU-  the  modes  of  election,  which  have  been  practised 
among  different  nations,  and  at  different  times,  two  only  are  in 
general  use  in  the  United  States,  namely,  the  viva  voce  or  oral,  and 
the  ballot  or  wTitten,  suffrage.  In  the  constitutions  of  New  Hamp- 
shire, Vermont,  Massachusetts,  and  Rhode  Island,  the  method  of 
voting  by  ballot  is  considered  to  be  established  as  the  method  in 
general  use,  and  is  sanctioned  either  in  express  terms  or  by  equiva- 
lent language ;  in  those  of  the  following  named  States,  it  is  ex- 
pressly required,  with  some  unimportant  exceptions,  in  all  general 
elections,  namely:  Maine,  Connecticut,  New  York,  Pennsylvania, 
Delaware,  Maryland,  North  Carolina,  South  Carolina,  Florida, 
Alabama,  Mississippi,  Louisiana,  Tennessee,  Ohio,  Indiana,  Illinois, 
Michigan,  Texas,  Iowa,  Wisconsin,  and  California ;  in  the  consti- 
tutions of  four  States,  namely,  Virginia,  Kentucky,  Georgia,  and 
Arkansas,  is  the  system  of  viva  voce  or  oral  suf&age  prescribed 
at  aU  general  elections ;  while  in  those  of  Pennsylvania,  California, 
Missouri,  Florida,  Louisiana,  Tennessee,  Ohio,  Michigan,  Alabama, 

1  The  law  of  Massachusetts  provides,  that  inhabitants  of  any  town  or  city  were  entitled 

"  if,  at  any  election,  a  greater  number  of  can-  to  elect,  and  the  state  of  the  vote  therefor  was 

didates,  than  the  number  to  be  elected,  shall  preserved,  that  the  election  of  the  proper  num- 

severally  receive  a  majority  of  the  whole  num-  ber  should  be  determined  by  the  votes  given 

ber  of  ballots,  a  number  equal  to  the  number  respectively  for  each. 

to   be  elected,  of  such,  as  have  the  greatest  "  West  Springfield,   Gushing,    S.  &  J.,  64; 

excess  over  such  majority,  shall  be  deemed  Bath,  Same,  73;   Dighion,  Same,  74;     Oxford, 

and  declared  to  be  elected."     Rev.  Sts.  c.  4,  Same,  75 ;  Sutton,  Same,  80, 154 ;   Bekhertown, 

^13.     Perhaps,   in   that   State,   it   would  be  Same,    103;     Westford,   Same,  141;    Maiden, 

held,  under  this  provision,  that  if  a  greater  Same,  293. 

number  of  members  wei-e  returned  than  the  »  gee  Cong.  Globe,  VII.  135. 


Chap.  IV.]  MODt;  of  election.  37 

Iowa,  North  Carolina,  Kentucky,  Wisconsin,  Arkansas,  (in  certain 
cases,)  and  Indiana,  this  system  is  required  to  be  pursued  only  in 
elections  by  the  legislature.  Where  the  system  of  oral  snflrage 
prevails,  the  elector  makes  a  declaration  to  the  returning  oflicer,  or 
to  some  person  appointed  by  him,  of  the  person  or  persons  for 
whom  he  votes ;  which  declaration  is  entered  in  a  book  provided 
for  the  purpose,  called  the  poll  book.  In  elections  by  ballot,  each 
voter  gives  his  suffrage  by  means  of  a  piece  of  paper,  or  o1her 
convenient  material,  having  the  name  of  the  person  for  whom  he 
votes  written  or  printed  on  it,  which  he  deposits  in  a  box,  or  urn, 
or  other  suitable  receptacle  provided  for  the  purpose  by  the  j)roper 
officers,  and  kept  in  their  custody  during  the  election.  The  distin- 
guishing feature  of  the  oral  suffrage  is  publicity;  that  of  voting  by 
ballot,  secrecy.  When  the  particular  mode  is  prescribed  by  law, 
or  established  by  usage,  no  other  can  be  regularly  pursued.'  The 
importance  of  the  subject  renders  it  proper  to  describe  these  modes 
of  proceeding,  and  to  state  the  principles  applicable  to  each,  with 
some  degree  of  minuteness. 

1.    Oral  Suffrage, 

95.  In  England,  where  members  .of  parliament  are  elected  by 
oral  suffrage  exclusively,  the  mode  of  proceeding  is  as  follows :  — 
The  electors  being  assembled  together  for  the  purpose  of  the 
election,  the  sheriff  or  other  returning  officer  usually  inquu-es  of 
them,  in  the  first  instance,  whom  they  elect  to  serve  them  in 
parliament.  The  candidates  are  thereupon  proposed;  each  of 
them,  to  the  requisite  number,  being  nominated  by  one  elector,  and 
seconded  by  another.  K  no  more  candidates  are  proposed  than 
are  required  to  be  chosen,  those  who  are  named,  being  thus  silently 
agreed  to,  are  to  be  declared  duly  elected,  and  immediately 
returned. 

96.  If  opposing  candidates  offer  themselves,  or  are  proposed  by 
the  electors,  the  returning  officer  determines  upon  the  view  who 
are  the  choice  of  the  major  part  of  the  electors,  and  makes  declara- 
tion accordingly.  K  the  electors  are  unanimous,  or  a  few  only 
dissent,  it  is  easy  to  determine  the  election  in  this  manner ;  but,  if 
the  returning  officer  is  in  doubt,  or  a  poll  is  demanded,  eitlier  by  a 
candidate  or  an  elector,  (which  demand  must  be  made  in  due 
time,  that  is,  before  the  majority  is  declared  upon  the  view,  or 
within  a  reasonable  time  afterwards,)  the  officer  must  then  proceed 

»  Eaiion  V.  Scott,  Clarke  &  Iliill,  272. 


38  LEGISLATIVE   ASSEMBLIES.  [PaRT   1. 

to  take  the  poll,  or,  in  other  words,  to  try  the  question  by  the 
numeration  of  the  voices,  in  the  manner  already  mentioned. 
"When  the  votes  have  all  been  thus  taken,  and  counted,  the  return- 
ing officer  announces  to  the  electors  which  of  the  candidates  have 
the  requisite  number  of  voices,  and  declares  them  to  be  duly 
elected.  An  election,  at  which  there  are  opposing  candidates,  is 
said  to  be  contested. 

97.  In  taking  the  poll,  it  frequently  happens,  that  objections  are 
made  to  particular  votes,  which  are  of  a  nature  to  require  a  more 
deliberate  examination,  than  the  hurry  of  the  moment  will  admit 
of ;  or  that  doubts  arise,  in  regard  to  votes,  which  may  be  removed 
on  further  inquiry.  In  such  cases,  it  is  usual  for  the  returning 
officer  to  receive  the  votes,  subject  to  his  ulterior  determination, 
whether  to  admit  or  reject  them.^  Votes  received  in  this  manner, 
which  are  denominated  queried  votes,  must  be  examined  and 
decided  upon  immediately  on  closing  the  poll,  and  before  declara- 
tion of  the  election  ;  and,  if  the  returning  officer  is  thereupon  satis- 
fied that  they  ought  not  to  be  received,  or  if  the  parties  neglect  or 
refuse  to  make  them  good,  they  are  to  be  struck  off  the  poU ; 
othermse  they  are  allowed  to  remain. 

98.  Where  votes  are  merejy  questioned  in  this  manner,  and  a 
scrutiny  is  not  called  for,  the  returning  officer  has  no  authority  to 
strike  off  any  other  votes  ;  but  if  a  scrutiny  is  demanded  by  a  can- 
didate, or  by  two  or  more  electors,  and  the  returning  officer  deems 
it  necessary,  (which  is  a  matter  entirely  within  his  discretion,)  the 
whole  poU  is  then  open  to  revision.  A  scrutiny  is  defined  to  be  a 
general  reconsideration,  by  the  returning  officer,  or  by  other 
persons  appointed  by  him,  of  the  entire  poll,  or  of  the  validity  of 
particular  votes ;  or  an  examination  of  the  grounds  of  certain 
claims,  which  have  been  respectively  received  or  rejected ;  and 
amending  the  poll  by  correcting  or  estabfishing  the  decisions  so 
made,  as  they  may  prove  to  have  been  erroneous,  or  otherwise.^ 

99.  When  an  elector  has  once  voted  in  this  form,  he  is  not  at 
liberty  afterwards  at  the  same  trial  to  change  his  vote ;  but  if,  after 
it  has  been  reduced  to  writing,  that  is,  entered  on  the  poU  book,  it 
appears  to  have  been  taken  down  for  a  wrong  candidate,  by  mis- 

1  Male,  140.  a  return,  which  he  did,  of  Lord  Hood  and  Mr. 

2  In  the  contested  election  for  Westminster,  Fox.  The  inconvenience  of  this  case  led  to 
in  1784,  the  returning  officer  granted  a  scru-  the  passing  of  a  statute,  regulating  polls  and 
tiny,  which  lasted  not  only  until  after  the  scrutinies,  which  among  other  things  provides, 
return  day  of  the  writ,  but  for  several  months  that  no  scrutiny  shall  be  protracted  beyond 
after  the  sitting  of  parliament.     The  house  of  the  return  day  of  the  writ, 

commons  at  length  directed  the  officer  to  make 


CUAP.  IV.]  MODE   OF   ELECTION.  39 

take,  the  vote  may  be  corrected  on  clear  and  satisfactory  e'vidence 
of  the  mistake,  provided  application  be  made  for  that  purpose  to 
the  returning  oflicer,  before  the  close  of  the  poll.^ 

100.  The  poll  is  to  be  closed,  when  all  the  electors  who  intend 
doing  so  may  be  presumed  to  have  voted.  But,  as  a  man  is  not 
compellable  to  give  his  suffrage  at  all,  or  at  any  particular  time,  but 
at  such  period  of  the  poll  only,  as  he  thinks  will  best  serve  the  can- 
didate to  whom  he  gives  it,  or  best  suit  his  own  convenience,  it  is 
left  to  the  impartial  discretion  of  the  returning  oilicer,  regulated  by 
common  usage,  to  determine  what  time  he  will  allow,  towards  the 
end  of  the  poll,  for  the  voters  to  come  in.  It  is  usual  to  make  three 
proclamations  at  a  small  interval  from  each  other,  that  the  poll  is 
about  to  be  closed  at  a  certain  time,  which  is  a  fair  notice  to  the 
remaining  voters  to  come  in.  At  the  time  appointed,  the  poll  book 
is  closed.- 

101.  When  all  the  proceedings,  which  may  intervene  between  the 
taking  of  the  poU,  and  the  declaration  of  the  result,  have  been 
brought  to  a  close,  the  returning  officer  declares  who  are  elected, 
and  proceeds  forthwith  to  make  his  return.'^ 

102.  Such  is  an  outline,  —  very  briefly  sketched,  —  of  the  manner 
in  which  an  election  of  a  member  of  parliament  is  conducted  in 
England.  The  form  of  proceeding,  in  those  parts  of  the  United 
States,  where  oral  suffrage  i^  practised,  is  the  same  in  substance ; 
with  such  modifications  as  may  have  been  introduced  by  the  con- 
stitution and  laws  of  each  particular  State. 

2.   Ballot. 

103.  A  ballot  may  be  defined  to  be  a  piece  of  paper,  or  other 
suitable  material,  with  the  name  \\Titten  or  printed  ^  upon  it  of  the 
person  to  be  voted  for ;  ^  and  where  the  suffrages  are  given  in  this 
form,''  each  of  the  electors,  in  person,'  deposits  such  a  vote  in  a  box 

'  Miile,  136.  was  considered  to  be  a  question  exclusively 

*  Male,  173.  within  the  competency  of  the   inspectors  to 

*  The  form  of  this  instrument  will  be  de-  decide.  Ad<ims  v.  Wilson,  Cliirke  &  Hull,  373. 
scribed  hereafter.  *  Where  the  foitn  of  a  ballot,  or%lie  manner 

*  Printed  votes  are  mrilten  votes,  within  the  of  depositing  it  in  the  box,  is  prescril)ed  by 
meaninp:  of  the  provision  in  the  constitution  law,  ballots  must  be  prepared  and  deposited 
of  Massachusetts,  that  "  every  member  of  the  accordingly,  or  they  will  be  rejected  by  the 
house  of  representatives  shall  be  chosen  by  returning  officer.  Latimer  v.  Patton,  Clarke 
written  votes."  flmshaw  v.  Fvster,  Picker-  &  Hall,  69;  Adams  v.  IFi/iian,  Same,  373 ;  Reed 
ing*s  Reports,  IX.  312.  v.  Corden,  Same,  353. 

*  Where  a  ballot  had  the  name  of  a  candi-  ^  See,  as  to  voting  by  proxy.  Case  of  John 
date  printed  on  it,  but  was  defaced  by  a  single  Richard.'i,  Clarke  &  Hall,  95.99;  CaseofJosefh 
stroke  of  a  pen  drawn  over  it,  it  was  held  by  B.  Wirnum,  Samo,  112;  Lynn,  Gushing,  S.  &J., 
the  inspectors,  to  be  a  blank  vote ;  and  this  255 ;  Jackson  v.  Waifne,  Clarke  &  Hall,  57,  69. 


40  LEGISLATIVE    ASSEMBLIES.  [PaRT   L 

or  other  receptacle  provided  for  the  purpose,  and  kept  in  the  cus- 
tody of  the  proper  officers. 

104.  Where  tv^^o  or  more  persons  are  to  be  elected  to  similar 
offices,  at  the  same  time,  they  may  be  voted  for  separately,  that  is, 
at  separate  ballotings;  or  they  may  be  voted  for  all  together  on  the 
same  ballot ;  in  the  latter  case,  each  ballot  must  contain  no  more 
(though  it  may  contain  fewer)  names,  than  the  number  of  persons 
to  be  elected ;  for,  where  more  names  are  on  a  ballot  than  the 
number  of  persons  to  be  voted  for,  it  is  impossible  for  the  returning 
officers  to  determine  which  of  them  (amounting  to  the  requisite 
number)  the  voter  intends ;  and,  consequently,  such  a  vote  must  be 
rejected  for  uncertainty.^ 

105.  Where  several  persons  are  voted  for  on  the  same  ballot,  for 
the  same  office,  it  is  of  no  consequence  to  annex  to  the  several 
names  the  offices  for  which  they  are  respectively  intended  ;  but 
where  different  officers  are  thus  voted  for,  it  is  essential  that  each 
of  the  names  should  be  accompanied  by  a  designation  of  the  office, 
for  which  the  voter  intends  it ;  and,  if  there  is  no  such  designation, 
the  ballot  must  be  rejected  for  uncertainty. 

106.  K  a  ballot  happens  to  have  the  same  name  written  or 
printed  on  it  more  than  once,  it  is  not  therefore  to  be  rejected ; 
because,  as  it  is  but  one  piece  of  paper,  it  cannot  be  counted  as 
more  than  one  vote ;  and,  though  the  same  name  is  written  on  it 
several  times,  it  is  yet  but  one  name.  Thus,  where  ballots  are  pre- 
pared for  distribution  in  the  usual  way  practised  in  some  of  the 
States,  that  is,  by  the  name  of  the  candidate  being  written  or 
printed  several  times  on  the  same  shp  of  paper,  for  the  purpose  of 
being  cut  up  into  separate  ballots,  and  being  nearly  cut  apart,  but 
so  as  to  adhere  together  at  one  end,  and  an  elector  inadvertently 
puts  two  votes  not  entirely  separated  into  the  box,  they  will  be 
counted  as  one  ballot,  unless  there  are  circumstances  present,  which 
afford  a  presumption  of  a  fraudulent  intent,  in  which  case,  they 
must  either  be  rejected,  or  the  whole  ballot  set  aside. 

107.  Where  several  different  officers,  or  sets  of  officers,  are  to  be 
elected%t  the  same  election,  two  modes  of  receiving  the  votes  may 
be  practised,  namely  ;  either  to  receive  all  the  ballots  into  one  box, 

1  In  the  case  of  Washburn  v.  Ripley,  Clarke  but  this  decision  cannot  be  sustained   upon 

&  Hall,  G79,  the  Committee  on  Elections  held,  any  other  principle,  than  that  an  elector  may 

that  a  ballot,  havinsf  three  different  names  on  vote   against  one    man,   without   voting  /or 

it,  and  another,  having  two  different  names  on  another,   which    Lord   Mansfield,   in   Jiex  v. 

it,  given  at  a  balloting  for  a  member  of  con-  Monday,  Cowper,  530,  declared  coul(knot  be 

gress,  might  each  of  them  be  counted  as  a  done, 
single  ballot,  in  making  up  the  whole  number; 


ClIAP.    IV.]  MODE   OF   ELECTION.  41 

in  which  case,  each  ballot,  besides  the  name  of  the  candidate  voted 
for,  must  contain  also  a  designation  of  the  olHce,  and  the  ballots 
may  either  be  separated,  or  the  names  be  contained  all  on  one 
sheet ;  1  or  to  have  as  many  boxes  as  there  are  officers,  or  sets  of 
officers  to  be  voted  for,  in  which  case,  the  several  boxes  must  be 
labelled  with  the  designation  of  the  office,  and  the  votes  for  each  be 
deposited  in  the  appropriate  box.  Where  the  first  mode  is  adopted, 
the  intention  of  a  voter  can  only  be  known  from  the  designation 
on  his  vote;  where  the  other  mode  is  used,  it  can  only  be  known 
from  the  designation  of  the  box  in  which  the  ballot  is  deposited;^ 
but  if  ballots,  which  bear  a  designation  for  one  office,  are  put 
into  the  box  appropriated  and  designated  for  another,  such  votes  are 
not  necessarily  to  be  counted  for  the  latter.-^ 

108.  When  an  elector  has  once  voted,  in  this  form,  that  is,  when 
he  has  placed  a  ballot  in  each  box  (if  there  be  more  than  one)  in 
which  votes  are  to  be  received,  whether  he  has  thereby  fuUy  exer- 
cised his  right  of  suffrage  or  not,  he  cannot  be  permitted  to  add  to, 
or  to  alter  his  vote,'  any  more  than  when  the  voting  is  oral,  not 
even  when  he  has  by  mistake  voted  differently  from  what  he 
intended.  A  mistake  occurring  on  the  part  of  the  officers  conduct- 
ing the  election,  by  which  a  voter  is  made  to  vote  differently  from 
what  he  intended,  may  as  well  be  corrected  where  the  voting  is  by 
ballot,  as  where  it  is  oral. 

109.  If  the  material,  of  which  a  ballot  is  composed,  is  suitable 
for  the  j)urpose,  that  is,  convenient  in  point  of  size  and  shape,  and 
sufficiently  durable,  and  the  \\Titing  or  printing  on  it  is  legible  and 
permanent,  it  can  hardly  be  of  any  consequence  what  the  material 
is,  or  in  what  manner  the  name  is  put  upon  it ;  unless  these  matters 
are  particularly  regulated  by  law.  It  is  equally  unimportant  what 
sort  of  receptacle  is  used  for  receiving  the  ballots,  provided  it  is 
sufficient  to  contain  them  and  can  be  made  reasonably  secure.^ 

110.  The  name  on  a  ballot  being  an  essential  part  of  it,  it  should 
be  so  \\Titten  or  printed,  as  to  designate  the  person  intended 
beyond  any  reasonable  doubt.     Where  there  are  several  persons 

1  In  the  city  of  Boston,  the  ballots  are  all  United  States,  it  appeared,  that  a  large  jrourd 

brought  in  on  one  sheet.  was   used  for   receiving  the    ballots;    which 

«  WaMurn  v.  Ripley,  Clarke  &  Hall,  679.  during  the  adjournment  of  the  poll,  was  se- 

«  Oise  of  Thomas  Nash,  Jr.,  Gushing,  S.  &  J.,  cured  by  being  carefully  stopped,  and  tied  up 

439.  in  a  handkerchief;  and  it  was  held,  tliat  the 

♦  Washburn  v.  JRipley,  Clarke  &  Hall,  679;  direction  of  the  law  of  Tennessee,  requiring 

Ante,  §  97  that  the  ballots  should  be   placed  in  a  box 

»  In  the  case  of  Arnold  v.  Lea,  decided  in  locked  or  otherwise  well  secured,  was  thereby 

1830  by  the  house  of  representatives  of  the  sutficiently  compUed  with.  Clarke  &  Hall,  60] 


4 


* 


42  LEGISLATIVE    ASSEMBLIES.  [PaRT   L 

of  the  same  name  in  a  constituency,  all  of  whom  are  In  fact 
equally  eligible,  and  one  of  them  has  been  designated  as  a  can- 
didate, ballots  bearing  that  name  are,  by  a  reasonable  intend- 
ment, and  without  any  further  designation,  supposed  to  be  given 
for  such  candidate.  Questions  relating  to  the  name  arise  from  the 
use  of  additions  or  abbreviations,  and  from  the  name  being  mis- 
spelt. 

111.  Additions  to  the  name,  as  junior,  senior,  esquire,  and  the 
like,  and  titles  prefixed  thereto,  as  general,  colonel,  honorable,  etc., 
constitutmg  no  part  of  the  name,  the  general  rule  is,  that  they  are 
to  be  wholly  disregarded ;  so  that  aU  ballots,  which  bear  the  same 
name,  however  different  they  may  be,  in  respect  to  such  additions 
and  titles,  are  to  be  considered  as  given  for  one  and  the  same 
person.^ 

112.  Abbreviations,  which  are  in  common  use,  such  as  those 
which  usually  and  frequently  occur  in  via-iting  and  printing  chris- 
tian names,  must  be  considered  as  designating  the  persons 
intended  with  as  much  certainty  as  if  the  names  were  written  at 
length.  In  regard  to  other  abbreviations,  and  to  the  use  of  initial 
letters,  in  the  place  of  names,  no  other  general  rule  can  be  laid 
down,  than  that  the  name  must  be  considered  as  properly  written 
or  printed  on  the  ballot,  provided  the  returning  officers  understand 
thereby,  beyond  a  reasonable  doubt,  for  whom  the  voter  intends  his 
vote. 

113.  When  the  name  of  a  candidate  is  misspelt  on  the  ballot, 
but  stiU  bears  the  same  sound,  when  pronounced  according  to  its 
orthography,  with  the  true  name,  it  is  to  be  considered  as  the  same 
to  all  intents  and  purposes ;  but,  where  the  name  on  a  ballot  is  spelt 
so  differently  from  the  true  name  of  the  candidate,  for  whom,  if  for 
any  one,  the  voter  probably  intends  it,  as  in  reality  to  constitute  a 
different  name,  though  yet  so  similar  as  to  render  it  probable  that  it 
was  intended  for  such  candidate,  the  only  general  rule  seems  to  be, 
*.o  regard  such  name  as  the  same  or  as  a  different  one,  according 
the  conviction  of  the  returning  officers  as  to  the  voter's  intention.'-^ 
Where  the  name  is  not  only  different,  but  unlike,  no  question  can 
arise  as  to  the  intention ;  because,  it  clearly  amounts  to  a  mistake 

• 

1  Turner  v.   Baylies,   Clarke  &   Hall,  234;  ^  Root  v.  Adams,  C\ArkQ  &   Hall,  271;  MaU 

Williams  V.  Bowers,  Same,,  1Q,Z;   Wilhuyhbyv.     lary  v.    Merrill,  Same,  330.  331;     G'Wen  v. 
Smith,  Same,  265 ;  Guyon  v.  Sage,  Same,  348 ;      Sharpe,  Same,  369. 
Hufjunin  v.   Ten  Eych,  Same,  501 ;    Wright  v. 
Fisher  Same,  518;  Ivnn,  Gushing,  S.  &  J., 
236. 


Chap.  IV.]  mode  of  election.  43 

on  the  part  of  the  voter,  as  to  the  name  of  the  person  for  whom  he 
mtends  to  vote,  which,  as  has  ahready  been  stated,  cannot  be 
corrected. 

114.  Pieces  of  paper,  of  the  shape,  size,  and  general  appearance 
of  ballots,  but  without  any  name  on  them,  placed  in  the  ballot  box 
by  qualified  voters,  under  the  pretence  of  voting,  are  known  by  the 
incongruous  name  of  blank  votes  or  ballots ;  and,  in  some  sections 
of  the  country,  it  is  understood,  are,  or  have  been  allowed  to  be 
counted  as  ballots,  in  making  up  the  whole  number  of  votes, 
where  an  absolute  majority  is  necessary  to  a  choice ;  on  the 
ground  that  being  cast  by  qualified  voters  as  and  for  ballots,  they 
must  be  received  and  allowed  all  the  effect,  of  which  they  can,  by 
any  possibility,  be  capable,  namely,  that  of  being  counted  against 
the  candidates  voted  for  by  the  other  electors.  But  this  ground  is 
whoUy  untenable,  inasmuch  as  the  right  of  suf&age  is  a  right  on 
the  part  of  the  electors  to  elect  some  one  to  an  office,  and  not  a 
right  to  prevent  an  election  from  being  made ;  and,  as  all  the  elec- 
tors have  the  same  right,  it  follows,  that  each  of  them  is  bound  to 
exercise  his  particular  right  in  such  a  manner,  as  to  allow  to  every 
other  elector,  the  free  and  full  exercise  of  the  same  right  on  his 
part ;  which  would  not  be  the  case,  if  one  elector  had  the  power, 
by  means  of  a  blank,  to  defeat  the  vote  of  another  for  a  particular 
candidate,  without  himself  voting  for  anybody.  Suffrage,  being  a 
solemn  duty,  as  well  as  a  fundamental  right,  ought  neither  to  be 
neglected  nor  abused.  Lord  Mansfield,^  speaking  of  the  election 
of  members  of  parliament  in  England,  where,  as  has  been  seen,  the 
electors  give  their  suffrages  orally,  said,  that  the  only  way  of 
defeating  the  election  of  one  candidate  was  by  voting  for  another. 
The  remark  is  equally  just  in  reference  to  elections  by  ballot.^ 

Section    III.  —  Of  the   Principle  upon  which  the  result  of 

AN  Election  is  determined. 

115.  In  aU  collective  bodies  of  men,  assembled  and  acting 
together  for  the  purpose  of  deliberating  and  deciding  upon  any 

•  In  the  King  v.  Monday,  Cowper's  Reports,  date ;  in  which  case,  an  effect  might  be  given 

530.  to  them  by  regarding  the  balloting  as  inefTec- 

»  Blank  votes  cannot,  of  course,  be  given,  tual.  In  the  house  of  repre^;entative9  in  con- 
where  the  voting  is  oral ;  nor,  as  will  be  seen  gress,  it  is  declared  by  a  rule,  (11,)  that  in 
hereafter,  can  they  be  supposed  to  have  any  all  ballotings  of  the  house,  blanks  shall  be 
effect  at  all,  in  elections  by  ballot,  where  a  rejected,  and  not  taken  into  the  count  in  the 
plurality  alone  is  necessary  to  elect;  unless  enumeration  of  votes,  or  reported  by  the 
indeed,  the  number  of  blanks  .exceeds  the  tellers.  The  same  principle  is  declared  by  la\t 
highest  number  of  votes  given,  to  any  candi-  in  Massachusetts.     Rev.  Sts.  c.  13,  ^  4. 


44  LEGISLATIVE  ASSEMBLIES.  [PaRT   L 

subject,  or  for  the  purpose  of  electing  to  any  oflice,  it  is  an 
admitted  principle,  that  whatever  is  done  or  agreed  to  by  the 
gi-eater  number  shall  stand  as  the  act  or  the  will  of  the  whole. 
This  principle  assumes,  as  its  basis,  the  absolute  and  perfect 
equality  of  all  the  individuals,  one  with  another,  who  enjoy  the 
right  of  suffrage,  in  the  possession  of  the  elements  essential  to  the 
determination  of  any  act  to  be  done,  or  to  the  formation  of  any 
judgment  to  be  pronounced,  or  to  the  effecting  of  any  election  to 
be  made,  as  the  act,  judgment,  or  choice,  of  the  whole. 

116.  This  equality  being  conceded,  —  and,  as  the  foundation  of  a 
system  of  government,  it  can  neither  be  denied  in  fact,  nor  ques- 
tioned in  principle,  —  it  is  easy  to  conclude,  first,  —  that  the 
knowledge  and  wisdom  of  the  greater  number  taken  promiscu- 
ously will  be  superior  to  the  knowledge  and  wisdom  of  any 
smaller  number  of  the  same  body  of  men ;  and,  secondly,  that,  as 
whatever  is  done  or  resolved  by  the  greater  number  affects  and 
operates  upon  the  individuals  themselves  composing  it  equally 
wdth  Ihe  others,  that  which  is  so  done  must  necessarily  possess  the 
quality  of  justice  in  a  higher  degree  than  the  act  or  resolution  of 
any  smaller  number  would  be  likely  to  possess.  It  is  upon  these 
grounds,  that  the  common  sense  of  mankind  recognizes  the 
authority  of  the  majority  as  the  only  solid  foundation  of  all  popular 
government. 

117.  The  term  majority,  that  is,  the  greater  number,  is  under- 
stood in  this  country  in  two  significations.  In  its  broadest  sense, 
it  denotes  the  greatest  of  any  number  of  unequal  divisions  of  the 
whole  body ;  in  its  strictest,  the  greater  of  any  two  unequal  divis- 
ions of  the  whole  body.  In  the  popular  elections  of  this  country, 
both  these  principles  are  practically  applied ;  the  first  being  known 
as  the  principle  of  plurality ;  the  other  only  as  that  of  majority. 

1.   Plurality. 

118.  In  elections,  in  which  the  principle  of  plurality  is  adopted, 
the  candidate,  who  has  the  highest  number  of  votes,  is  elected, 
although  he  may  have  received  but  a  small  part  of  the  whole ; 
and,  where  several  persons  are  voted  for  at  the  same  time  for  the 
same  office,  those  (not  exceeding  the  number  to  be  chosen),  who 
have  respectively  the  highest  number  of  votes,  are  elected.  But, 
where  two  or  more  persons  have  equal  numbers  of  votes,  there  is 
no  election,  and  a  new  trial  must  take  place,  unless  some  other 
mode  of  determining  the  question  is  provided  by  law.  In  some  of 
the  States,  where  the  votes  are  thus  divide'd,  the  retm-ning  officers 


Chap.  IV,]  mode  of  election.  46 

are  authorized  to  decide  between  them,  and  to  return  which  they 
please  ;  but,  unless  thus  expressly  authorized  by  law,  the  returning 
officers  have  no  casting  vote.^ 

2.   Majority. 

119.  A-Ccording  to  the  definition  just  given,  a  majority  as  distin- 
guished from  a  plurality  being  the  greater  of  any  two  unequal 
divisions  of  the  whole  body,  the  candidate  who  is  elected,  where 
one  only  is  to  be  chosen,  must  receive  more  votes  than  are  given 
for  all  the  other  candidates  put  together ;  and,  where  two  or  more 
persons  are  to  be  elected  at  the  same  time,  those  who  are  elected 
must  each  of  them  receive  a  number  not  less  than  the  greater  of  the 
two  nearest  unequal  numbers,  into  which  the  whole  number  can  be 
divided.  If  the  whole  number  is  an  even  one,  the  number  neces- 
sary to  a  choice  is  its  half,  increased  by  one  ;  if  the  whole  number 
is  uneven,  the  number  necessary  to  a  choice  is  the  one  half  of  the 
whole  number  increased  by  one ;  thus,  if  the  whole  number  is  ten^ 
the  number  requisite  to  a  choice  is  six  ;  if  the  whole  number  is  m'we, 
the  number  requisite  to  a  choice  is,  five. 

120.  In  order  to  determine  the  result  of  an  election,  on  the  prin- 
ciple of  an  absolute  majority,  it  is  necessary  in  the  first  place,  to 
ascertain  the  whole  number  of  persons  who  have  voted ;  which,  if 
the  suffrages  are  taken  oraUy,  is  effected  by  counting  the  names  on 
the  poU  book ;  or  if  the  voting  is  by  baUot,  by  counting  the  number 
of  ballots.'-^ 

121.  This  mode  of  ascertaining  the  whole  number,  although  it 
seems  to  be  the  only  practicable  one,  operates  to  the  disadvantage 
of  those  of  the  candidates,  if  any,  where  several  persons  are  voted 
for  on  the  same  ballot,  whose  names  happen  to  be  omitted  from 
some  of  the  tickets ;  because  the  number  of  votes,  or  majority, 
necessary  for  such  persons  to  have,  in  order  to  be  elected,  being 
determined  by  counting  aU  the  ballots,  including  those  which  do  not 
bear  the  whole  number  of  names,  and  which,  so  far  as  those  persons 
are  concerned,  are  mere  blanks,  is  increased  beyond  what  it  would 
be,  if  the  candidates  were  voted  for  separately. 

122.  On  the  other  hand,  another  mode  of  ascertaining  the  whole 
number,  which  has  sometimes  been  adopted,  with  a  view  to  avoid 

1  WincheUea_   Glanville,  21;    Ante,    \  92;         »  Rev.  Stat,  of  Mass.  c.  4,  §  13.    See  .ind» 
Quien  V,  Chaprmn,  Modern  Ki^ports,  VI.  152;     »er,  Gushing,  S.  &  J.  205. 
Reea  v.  Corden,  Clarke  &  HaL\  353  ;  SunuVy 
(Xtiztns  V.  ikrgeail,  Same,  516. 


46  LEGISLATIVE   ASSEMBLIES.  [PaRT    L 

the  inequality  just  alluded  to,  runs  into  the  opposite  extreme,  and 
allows  those  whose  names  are  on  all  the  ballots  to  be  elected  by  less 
than  a  majority.  This  mode  consists  in  counting  all  the  names  on 
the  ballots,  and  dividing  the  number  by  the  number  of  persons  to  be 
chosen  ;  the  quotient  is  taken  as  the  whole  number  of  ballots  given.^ 
This  mode  of  proceeding  has  not  been  sanctioned. 

123.  K  the  candidates  on  both  sides  could  be  numbered  consecu- 
tively, and  each  number  considered  as  a  separate  balloting,  these 
inconveniences  attending  the  voting  by  general  ticket  woiild  be 
remedied. 

124.  In  Massachusetts,  when  it  happens,  as  it  may  where  an 
election  of  several  persons  is  made  at  one  balloting,  that  more  per- 
sons have  the  requisite  majority  than  the  number  of  persons  to  be 
chosen,  it  is  provided  by  statute,  that  the  highest  on  the  list,  not 
exceeding  that  number,  shall  be  considered  as  elected.^  The  same 
statute  also  provides,  that  if  the  whole  number  of  persons  to  be 
elected  cannot  be  completed,  by  reason  of  any  two  or  more  having 
received  an  equal  number  of  votes,  the  persons  having  such  equal 
number  shaU  be  deemed  not  elected.  The  rules  thus  established 
are  so  reasonable  and  proper,  and  so  entirely  analogous  to  admitted 
principles  of  the  law  of  elections,  that  they  would  probably  be 
recognized,  even  though  not  sanctioned  by  any  express  provision 
of  law. 

125.  The  principles  just  stated  lead  to  the  conclusion,  that  where 
in  any  election,  in  which  an  absolute  majority  is  necessary  to  a 
choice,  the  voting  is  by  ballot,  and  the  ballots  are  received  and  dealt 
w4th  in  such  a  manner,  as  to  render  it  impossible  to  ascertain  the 
number  of  persons  voting,  the  whole  proceeding  is  necessarily  void. 
Thus,  where  two  persons  were  to  be  elected  at  one  balloting,  and 
some  of  the  voters  gave  in  ballots  containing  two  names,  —  some 
were  allowed  to  give  in  two  separate  ballots  with  one  name  on 
each,  —  some  gave  in  only  one  ballot  with  but  one  name  on  it,  — 
and  the  officers  presiding  at  the  election  divided  those  ballots  having 
two  names  on  them  into  two,  before  counting,  —  so  that  the  whole 
number  of  persons  voting  could  not  be  ascertained,  the  election  was 
held  void.^  So  where  the  officers  presiding  inadvertently  omitted 
to  sort  and  count  a  considerable  part  of  the  ballots.'* 

1  CharkstouM,  Gushing,  S.  &  J.,  167;  Case  *  Wreniham,  Cnshing,  S.  &.I.,70;  Neiobttri/. 

of  William  B.  Afhma,  Same,  267;    Wrenlham,  Same,  191;  Braintree,  Same,  395. 

Same,  70;  Newbury,  Same,  191.  *  Aiidover,  Gushing,  S.  &  J.,  187. 

»  Rev.  Ste.  c.  4,  ^  13. 


Chap.  IV.]  mode  of  election.  47 

3.    Origin  and  Introduction  of  the  Majority  Principle. 

126.  At  the  time  of  the  first  settlement  and  colonization  of  the 
United  States,  the  elections  of  members  of  parliament  in  England 
were  conducted  upon  the  principle  of  plurality ;  which  also  pre- 
. ailed  in  all  other  elections,  in  which  the  electors  were  at  liberty  to 
select  their  candidates  from  an  indefinite  number  of  qualified  per- 
sons. Such  has  been  and  still  continues  to  be  the  common  law  of 
England ;  and  such  is  the  present  practice  in  that  country  in  all 
elections.  Indeed,  what  is  meant  there  by  the  term  majority  em- 
braces what  is  denoted  with  us  by  the  word  plurality. 

127.  In  this  country,  however,  the  principle  of  majority,  or 
absolute  majority,  as  it  is  sometimes  called,  was  early  introduced 
into  the  law  of  elections  by  the  colonists  of  New  England ;  where 
it  has  ever  since  prevailed  to  a  greater  or  less  extent ;  in  some  of 
the  States  exclusively,  in  others  only  partially. 

128.  In  the  States,  where  this  principle  is  established,  it  is 
usually  provided  by  the  constitution  or  laws,  that  an  absolute 
majority  shall  be  necessary  to  the  election  of  certain  officers.  But, 
even  in  cases  where  there  is  no  such  express  provision,  an  absolute 
majority  is  nevertheless  required,  in  some  of  the  States,  in  the 
election  of  officers,  in  reference  to  whom  no  other  provision  is 
made.  Thus,  in  Massachusetts,  the  constitution  contains  no  pro- 
vision requiring  representatives  to  be  elected  by  absolute  majorities, 
as  it  does  in  reference  to  the  governor,  lieutenant-governor,  and 
senators  ;  nor,  until  the  year  1836,  when  the  Revised  Statutes  went 
into  operation,  was  there  any  general  law,  requiring  such  a  majority 
in  the  election  of  representatives  or  other  public  officers  of  any  kind ; 
but  still  in  all  elections  previous  to  that  time,  an  absolute  majority 
was  considered  as  necessary,  by  usage  and  custom,  as  it  has  since 
become  by  positive  statutory  enactment.  Indeed,  the  majority 
principle  is  so  essential  and  fundamental  in  Massachusetts,  that  it 
prevails  in  the  elections  of  all  private  corporations  and  associations, 
as  well  as  in  those  of  a  municipal  character.^ 

129.  In  all  the  States  with  the  exception  of  some  of  the  New 

1  The  plurality  principle  has  recently  been  constitution,  was  adopted  by  the  legislature 

introduced  into  this  State,  in  regard  to  all  of  1854,  and  having  been  agreed  to  by  the 

elections  for  tiie  choice  of  town,  city,  or  coun-  next  Icgii^lature,  and  afterwards  sanctioned  by 

ty  oflScers,  by  the  act  of  1854,  c.  39,  and  in  the  people,  it  has  become  tlie  supreme  law  of 

regard  to  the  election  of  members  of  congress  the  land.    In  Maine,  by  the  seventh  article  of 

by  the  act  of  1854,  c.  70.    An  amendment  to  the  amendments  to  the  constitution,  the  plu- 

the  constitution,  extending  the  same  principle  rality  principle  has  been  introduced  into  th« 

to  the  election  of  all  civil  officers  under  the  election  of  representatives. 


48  LEGISLATIVE    ASSEMBLIES.  [PaRT   1. 

England  States,  on  the  contrary,  the  principle  of  plurality  generally 
prevails  in  reference  to  aU  municipal  elections ;  being  specially 
provided  by  the  constitution  or  laws  or  usages  of  the  several  States. 
"Whether,  in  the  absence  of  any  particular  provision,  the  plurahty 
or  the  majority  principle  would  be  recognized  as  the  law,  must 
depend,  of  course,  upon  the  usage  in  each  particular  State. 

130.  It  is  not  unreasonable  to  suppose,  that  the  diversity,  which 
thus  exists  in  the  mode  of  determining  the  result  of  an  election, 
may  be  the  source  of  corresponding  diversities  in  the  political  char- 
acter and  history  of  the  different  States.  But  this  is  a  topic,  which 
it  would  be  foreign  to  our  present  purpose  to  consider.  It  would 
be  interesting  doubtless  to  know  what  was  the  origin  of  this  differ- 
ence, whether  it  was  accidental  or  intentional,  —  if  the  latter,  was 
it  the  purpose  in  view,  in  the  establishment  of  the  majority  princi- 
ple, in  some  States,  to  secure  greater  permanence  and  stability  in 
the  administration  of  the  government,  —  or  was  the  plurality  prin- 
ciple maintained  in  others,  for  the  purpose  of  preventing  or  destroy- 
ing the  influence  of  third  and  other  minor  parties,  —  or  whatever 
were  the  purposes  in  view,  have  those  purposes  been  effected? 
These  are  questions,  which  do  not  probably  admit  of  a  satisfactory 
answer.  The  most  that  can  now  be  done  is  to  indulge  in  a  con- 
jecture, perhaps  an  ill  founded  one,  that  the  origin  and  introduction 
of  the  majority  principle  are  to  be  attributed  to  the  proceedings 
under  the  colonial  ordinances  of  Massachusetts,  in  the  elections  of 
the  magistrates  of  the  colony.^ 

131.  In  connection  v/ith  this  subject,  it  may  be  observed,  that 
where  there  are  but  two  sides  to  a  question,  —  as  for  example, 
where  a  proposition  is  made  in  a  deliberative  assembly,  and  the 
members  vote  for  or  against  it,  —  or  where  a  particular  person  is 
nominated  for  office,  and  the  electors  vote  for  or  against  him,  —  or 
where  an  election  of  one  out  of  two  given  persons  is  to  be  made,  -  - 
in  aU  these  cases,  the  majority  and  plurality  are  one  and  the  same 
thing. 

>  Appendix,  IV. 


Chap.  V.]  returns.  49 


CHAPTER  FIFTH. 

OF  THE  RETURN  OF  THE  PERSONS  ELECTED. 

132.  The  election  of  members  of  parliament  takes  place,  as 
already  remarked,  in  pm-suance  of  writs  issued  by  the  lord  chan- 
cellor, in  obedience  to  a  royal  proclamation.^  Like  other  writs, 
which  require  the  doing  of  something  by  those  to  whom  they  are 
directed,  a  writ  of  election  is  to  be  executed,  and,  with  the  proceed- 
ings of  the  officer  indorsed  thereon,  to  be  returned  ^  into  chancery, 
and  there  placed  in  the  custody  of  the  clerk  of  the  crown,  on  or 
before  a  certain  day  named  in  the  writ,  called  the  return  day. 

133.  When  an  election  is  effected,  a  certificate  thereof  is  made, 
by  indentures  under  the  seals  of  the  electors,  or  some  of  them,  of 
the  one  part,  and  of  the  returning  officer  of  the  other ;  one  part  of 
which  is  attached  to  the  precept,  in  the  case  of  borough  elections, 
or  to  the  writ  in  the  case  of  a  county  election,  and  is  denominated 
the  return.3  All  the  indentures  of  return  are  attached  by  the  sheriff 
to  the  writ  of  election,  and  with  it  returned  by  him  into  chancer>\'* 

134.  A  writ  of  election,  being  returnable  on  a  day  named  in  it, 
must  be  returned  accordingly,  whether  an  election  has  taken  place 
or  not.  Hence,  returning  officers  sometimes  make  a  special  return, 
stating  all  the  facts,  where  no  election  has  been  made ;  or  a 
double  return  (as  it  is  called)  where  they  are  unable  to  determine 
which  of  t^vo,  or  of  two  sets  of  candidates,  has  been  elected.  It 
must  be  recollected,  that,  in  England,  members  of  parliament  are 
elected  by  pluralities ;  and,  consequently,  that  where  the  proceed- 
ings are  regular  and  proper,  there  is  but  one  case,  in  which  there 
can  be  a  failure  to  elect,  namely,  when  two  or  more  of  the  persons 
voted  for  have  the  same  number  of  votes. 

135.  In  this  country,  the  election  of  the  members  and  the  con- 
vening of  a  legislative  assembly  being  regulated  by  the  constitution 
and  laws,  the  proper  officers  proceed  to  the  election,  in  the  several 
constituencies,  at  the  time  appointed  by  law,  of  their  own  authority, 
and  without  any  writ  or  precept  from  a  higher  power.  With  us, 
therefore,  there  being  no  writ  or  precept  in  ordinary  cases,  return- 

1  Ante,  §  85.  »  Appendix,  V. 

*  Appendix,  V.  *  Rogers  on  Elections,  40. 


50  LEGISLATIVE   ASSEMBLIES.  [PaRT    1. 

ing  officers  do  not  usually  make  any  return,  unless,  in  their  judg- 
ment, an  election  has  taken  place ;  though  in  some  instances  they 
have  considered  it  their  duty  to  make  special  statements,  in  place 
of  returns,  or  to  accompany  their  returns  with  such  statements, — 
and  for  the  same  reason,  double  returns  are  rarely  made,  except 
under  very  peculiar  circumstances,  or  where  there  are  rival  sets  of 
returning  officers.  "When  a  vacancy  occurs  in  a  legislative  body, 
by  death,  resignation,  or  otherwdse,  an  order  is  passed,  or  a  pre- 
cept issued,  for  filling  the  vacancy. 

136.  The  purpose  of  a  return  is  to  authenticate  the  election  in 
such  a  manner,  as  to  enable  the  persons  elected  to  take  upon  them- 
selves their  official  functions.  In  this  country,  the  object  is  effected 
by  means  of  certificates  of  the  election  (also  called  returns)  under 
the  hands  of  the  returning  officers,  either  given  to  the  persons  elected, 
or  sent  to  some  appropriate  department  of  the  government.^  The 
manner  in  which  an  election  is  evidenced  varies  so  much  in  the 
several  States,  that  it  can  only  be  laid  down  generally,  that  every 
election  is  judged  of,  in  the  first  instance,  by  the  officers  appointed 
by  law  to  preside  thereat  and  receive  the  votes,  or  by  other  officers 
appointed  by  law  to  receive  the  returns  of  votes,  and  that  the  result 
of  the  adjudication  is  certified  in  writing. 

137.  A  principle  of  the  parliamentary  law  of  England,  which 
does  not  prevail  here,  may  very  properly  be  mentioned  in  connection 
with  the  subject  of  the  return.  The  principle  alluded  to  is,  that  all 
persons,  free  from  disqualification,  are  eligible  to  the  house  of  com- 
mons, even  against  their  own  consent,  and  contrary  to  their  desire ; 
and  that  after  their  election,  they  cannot  renounce  their  return,  but 
must  serve  in  the  trust  conferred  upon  them,  which  is  said  to  be  a 
trust  not  for  their  own  but  for  the  public  benefit.^  But  though  it  is 
not  in  the  power  of  one  elected  to  renounce  his  election,  in  direct 
terms,  and  thus  prevent  himself  from  being  returned ;  certain  expe- 
dients have  nevertheless  been  resorted  to  for  effecting  the  same 
object,  which  wiU  be  explained  under  the  head  of  vacancies.  In 
this  country  the  rule  established  by  usage  is  undoubtedly  the  reverse 
of  the  principle  thus  stated ;  no  man  here  being  considered  as  obliged 
to  serve,  against  his  own  consent,  in  any  office,  unless  specially 
required  thereto  by  law.     Hence,  it  is  competent  for  one  elected  to  a 

1  Where  several  persons  are  elected  by  the         *  Gloucester,   Glanville,   99,  101 ;    Male  on 

game  constituency,  it  seems  immaterial  wheth-  Elections,  64;  Fourth  Institute,  49;  Sir  Hum- 

er  they  are  returned  by  one  certificate,  or  by  phrey   Hook's    Case,  Comm.   Jour.  VIII.  250, 

ieveral  644 ;  1  Douglass,  281. 


Chap.  V.]  returns.  51 

legislative  assembly,  to  decline  the  ofTice  ^  conferred  upon  him ;  in 
which  case,  no  return  can  be  made,  and  a  new  election  must  be 
held  in  the  manner  required  by  law. 

138.  "  With  respect  to  the  general  duty  of  returning  officers," 
an  English  writer  on  the  law  of  elections  remarks,  "the  law 
exacts  of  every  person  who  is  placed  in  this  situation,  that  his  con- 
duct shall  be  upright,  consistent,  and  impartial ;  and  that  he  shall 
in  all  respects  act  to  the  best  of  his  knowledge  and  capacity ;  from 
which  line,  wherever  he  shall  deviate,  by  lending  himself  to  tht 
views  of  particular  candidates,  or  by  making  the  color  and  auihority 
of  his  office  subservient  to  private  ends  and  purposes,  the  so  doing 
will  be  highly  criminal,  and,  if  brought  before  the  house,  he  will  not 
fail  to  incur  both  censure  and  punishment."  ^  Misconduct  or  neg- 
lect of  duty,  on  the  part  of  returning  officers,  may  be  considered  as 
affecting  the  electors,  the  elected,  the  election,  or  the  public  generally. 

139.  In  regard  to  the  electors,  we  have  already  seen,  that  return- 
ing officers  are  liable  in  damages,  for  wilfully  and  maficiously  refus- 
ing to  receive  the  vote  of  a  duly  qualified  elector.^  In  regard  to  the 
persons  elected,  the  general  rule  is,  that  returning  officers  are  not 
Hable  at  common  law,  for  refusing  or  neglecting  to  make  a  retiirn, 
or  for  making  a  false  or  double  return,  in  derogation  of  the  right  of 
a  person  duly  elected.  But  in  all  these  cases,  by  statute,  in  Eng- 
land, returning  officers  are  made  liable  to  penalties  or  damages. 
How  far  an  election  may  be  affected  by  the  misconduct,  want  of 
qualification,  or  particular  proceedings,  of  returning  officers,  we 
shall  have  occasion  to  consider  under  the  head  of  controverted  elec- 
tions. In  regard  to  the  public,  generally,  the  misconduct  of  return- 
ing officers  has  always  been  considered  a  public  offence,  within  the 
criminal  jurisdiction  of  the  house  of  commons,  and  punishable  by 
censure  and  imprisonment.  In  certain  cases,  also,  they  are  made 
fiable  by  statute  to  punishment  by  indictment.  In  this  country, 
returning  officers  are  punishable,  by  indictment,  in  several  of  the 
States,  for  variovis  kinds  of  misconduct.  How  far  they  are,  or 
would  be  considered,  amenable  to  the  criminal  jurisdiction  of  the 
legislative  assembfies,  may  be  regarded  as  doubtful. 

140.  As  to  the  general  duty  of  returning  officers,  if  has  been  a 
point  much  agitated  in  England,  whether  it  is  wholly  ministerial,  or 
whether  it  is  in  any  degree  judicial.  In  reference  to  this  question, 
the  writer  already  referred  to  remarks :  —  "  There  can  be  no  doubt, 

>  Bedford,  Cushin»,  S.  &  J.,  351 ;  Ilamnwnd         «  Male,  31. 
V.  Hen-ick,  Clarke  &  Hall,  2S7.  «  Ante,  «  90. 


52  LEGISLATIVE  ASSEMBLIES.  [PaRT    I. 

that  in  those  branches  of  their  duty,  wherein  the  law  has  marke(3i 
out  a  definite  line,  it  is  ministerial ;  but  as  regarding  the  two  mate- 
rial branches,  of  deciding  u])on  the  capacity  or  incapacity  of  candi- 
dates, or  upon  the  qualifications  or  disqualifications  of  electors,  the 
subject  requires  some  investigation.  But,  if  the  returning  officer  be 
fuUy  apprised  of  some  notorious  disqualification,  whether  of  a  can- 
didate or  of  an  elector,  such  as  their  being  minors,  or  claiming  in 
right  of  property,  which  clearly  does  not  entitle  them  to  the  privi- 
lege, he  is  so  far  a  judicial  officer,  as  to  prevent  their  voting,  or  being 
returned,  and  in  case  he  returned  the  one  as  elected,  or  accepted  the 
vote  of  the  other,  he  would  in  such  a  case  be  highly  culpable,  and 
be  punished  by  the  house  ;  but,  on  the  other  hand,  he  acts  at  his 
peril,  and  if  he  presume  to  refuse  a  vote  without  good  and  sufficient 
reasons,  he  will  subject  himself  to  an  action  at  law,  by  the  party 
aggrieved  ;  but  the  plaintiff  must  show  malice  to  support  the  action." 
In  the  judicial  decisions  of  this  country,  —  where  this  point  is  ad- 
verted to,  —  it  seems  to  be  considered,  that  the  functions  of  the 
returning  officers  are  chiefly  judicial  in  their  character.  There  are 
many  particulars,  however,  in  which  their  duties  involve  no  exercise 
of  discretion  or  judgment,  —  as,  for  example,  in  the  State  of  Massa- 
chusetts, in  receiving  the  unquestioned  vote  of  an  elector,  whose 
name  is  on  the  list  of  voters,  —  and  which  are  consequently  merely 
ministerial. 

141.  It  remains  to  be  observed,  in  conclusion,  that  the  proceed- 
ings of  these  officers,  from  the  necessity  of  the  case,  are,  in  the  first 
instance,  uncontrollable  by  any  other  authority  whatever  ;  so  that, 
if,  on  the  one  hand,  notwithstanding  an  election  has  been  effected, 
the  returning  officers  refuse  or  neglect  to  make  the  proper  return, . 
the  party  thereby  injured  is  without  remedy  or  redress,^  until  the 
assembly  to  which  he  is  chosen  has  examined  his  case,  and  ad- 
judged him  to  be  duly  elected ;  and,  on  the  other  hand,  if  the 
returning  officers  make  a  return,  when  no  election  has  in  fact  taken 
place,  or  of  one  who  is  not  eligible,^  the  person  returned  will  not 
only  be  entitled,  but  it  is  his  duty,  to  assume  and  discharge  the 
functions  of  a  member,  until  his  retnirn  and  election  are  adjudged 
void.'^ 

1  No  action  lies  at  common  law  as  to  false  or  Ventris's  Keports,  II.  37 ;  Prideaux  v.  Morrii, 

double  returns.     Barnardiston  v.  Soame,  Lev-  Salkeld's  Reports,  502. 

inz's  Reports,  II.  114;  Lutwyche's  Reports,  L  "  Monmouth,  Glanville,  121. 

89;  State  Trials,  VII.  431;  Omhw  v.  Ra2)ky,  »  Ponlefract,  GlanvUle,  136. 


Chap.  VI.]      controverted  returns  ani>  elections.  •'^3 


CHAPTEK    SIXTH. 

OF    CONTROVERTED    RETURNS  AND    ELECTIONS. 

142.  Though,  as  we  have  just  seen,  persons  returned  are  pre- 
Bumed  to  be  duly  elected,  at  least,  so  far  as  to  entitle  them  to 
assume  the  functions  of  members ;  yet  the  decisions  of  the  return- 
ing officers  are  not  conclusive ;  their  proceedings  may  be  revised, 
and  their  judgments  corrected;  and  the  members  returned  by  them 
may  be  excluded  and  others  admitted,  upon  due  investigation  by 
the  competent  authority.^ 

143.  It  will  be  perceived  from  what  has  been  stated  with  regard 
to  the  determination  and  authenticating  of  elections,  that  one  per- 
son may  be  in  fact  elected,  whilst  another  is  apparently  elected,  in 
which  case,  the  latter  is  entitled  to  be  returned,  though  the  former 
is  entitled  to  the  seat ;  as,  for  example,  where  t\^^o  candidates  only 
are  voted  for,  and  by  the  decision  of  the  returning  officers,  admitting 
illegal  or  rejecting  legal  votes,  one  of  the  candidates  has  an  appar- 
ent majority,  the  latter  is  entitled  to  the  return,  but  the  other  is 
clearly  entitled  to  the  seat. 

144.  This  distinction,  between  elections  and  returns,  has  led  in 
England,  to  their  being  in  some  instances  separately  considered,  in 
the  same  case ;  so  that  where  it  appears,  without  going  into  the 
merits  of  an  election,  that  the  petitioner  against  a  sitting  member 
was  apparently  elected  and  ought  to  have  been  returned,  the  house 
of  commons  will  reverse  the  position  of  the  parties,  by  excluding 
the  sitting  member,  and  putting  the  petitioner  in  his  place,  as  duly 
returned;  leaving  the  election  open  to  be  controverted,  and  throw- 
ing the  burden  of  doing  so  upon  the  party  to  wliom  it  properly 
belongs.-  The  establishment  of  this  principle  in  the  English  law 
of  elections,  though  the  distinction  exists  and  is  entirely  weU 
founded  in  those  cases  in  which  returning  officers  are  obliged  to 
grant  or  withhold  the  returns  upon  the  prima  facie  evidence  before 
them,  and  can  have  no  means  at  hand  of  judging  of  the  merits  of 
an  election,  is,  in  part,  at  least,  attributable  to  the  very  great  expense 
attending  the  trial  of  a  controverted  election  case  in  England ;  but 
in  this  country,  —  although  the  same  distinction  undoubtedly  exists, 

>  Southicnrk,  Glanville,  21.  ^  Rogers  on  Election  Committees,  70,  71. 


54  LEGISLATIVE    ASSEMBLIES.  [PaRT    1. 

and  it  has  frequently  been  attempted  to  be  here  introduced,  —  yet 
the  practice  of  considering  and  deciding  upon  the  return,  distinct 
from  the  election,  does  not  appear  to  have  been  anywhere  intro- 
duced.i  The  question  in  every  case  relates  to  the  right  of  member- 
ship, generally,  without  reference  to  the  position  of  the  parties. 

145.  Where  a  person,  being  duly  elected,  is  not  returned;  or 
Avhere  one  is  returned,  not  being  elected ;  or  where  one  person  is 
elected,  and  another  returned ;  or  when  one  is  duly  elected  and 
returned,  but  is  or  becomes  disqualified ;  in  all  these  cases,  the 
right  of  membership,  whether  depending  upon  the  return  or  the 
election,  or  founded  in  circumstances  afterwards  transpiring,  may 
be  called  in  question,  investigated,  and  adjudged.  Questions  of 
this  description,  though,  in  the  order  of  time,  not  naturally  arising 
in  some  cases  until  after  the  constitution  of  the  assembly,  yet 
involving  the  law  relating  to  elections,  may  very  properly  be  con- 
sidered in  connection  with  the  latter  subject.  It  is  proposed,  there- 
fore, to  state  very  briefly  some  of  the  principal  points  in  the  law 
and  practice  relating  to  controverted  elections  and  returns,  under 
the  following  heads,  namely ;  first.  Of  the  tribunal  for  the  trial  of 
rights  of  membership,  and  of  the  time  and  manner  of  proceeding 
therein ;  second.  Of  returns  controverted  or  questioned ;  third.  Of 
elections  of,  and  votes  given  for,  disqualified  persons;  fourth,  Of 
elections,  as  affected  by  proceedings  injurious  to  the  freedom  of 
election;  fifth.  Of  elections  as  affected  by  the  qualifications  and 
conduct  of  the  retm-ning  officers.^ 


Section  I.  —  Of  the  Tribunal  and  Mode  of  Proceeding. 

146.  The  present  constitution  of  the  house  of  commons  is,  to  a 
considerable  extent,  the  result  of  a  series  of  struggles  between  it, 
on  the  one  hand,  and  the  sovereign,  or  the  lords,  or  both,  on  the 
other.  One  of  the  earliest  of  these  conflicts,  and  one  of  the  most 
interesting,  is  that  which  terminated  in  the  establishment  of  the 
right  of  the  commons,  to  be  the  exclusive  judges  of  the  returns, 
elections,  and  quahfications,  of  their  own  members.  This  right, 
after  having  been  claimed  and  exercised,  at  one  tinie,  by  the  king 
and  council,  at  another,  by  the  house  of  lords,  and,  again,  by  the 

1  EasUm  V.  Scott,  Clarke  &  Ilall,  272,  278;  subject,  thouo;h  not  such  as  would  be  adopted 

Biddle  <f  another  v.  Wing,  Same,  504.    See  also  in  a  complete  and  scientific   treatise,  on  tne 

Potter  V.  licbhins  Same,  877.  law  of  elections,  will  be  found  adequate  to  tha 

*  This  claasdication  and  arrangement  of  the  purposes  of  the  present  work- 


Chap.  VI.J      controverted  returns  and  elections.  55 

lord  chancellor,  was  declared  by  a  resolution  of  the  commons,  in 
1624,  and  has  ever  since  been  admitted  to  belong  exclusively  to 
the  house  itself,  as  "  its  ancient,  natural,  and  undoubted  privilege."  ^ 

147.  This  power  is  so  essential  to  the  free  election  and  independ- 
ent existence  of  a  legislative  assembly,  that  it  may  be  regarded  as 
a  necessary  incident  to  every  body  of  that  description,  which 
emanates  directly  from  the  people  ;  it  is  also,  out  of  abundant 
caution,  conferred  upon  or  guarantied  to  most  of  the  legislative 
assemblies  of  the  United  States,  by  express  constitutional  pro- 
visions.- 

148.  An  inquiry  into  the  right  of  a  member  to  his  seat  may  be 
brought  forward,  in  the  first  instance,  either  by  the  motion  of  a 
member,  or  by  the  petition  of  a  party  interested ;  or  it  may  arise 
from  an  examination  of  the  returns. 

149.  It  is  undoubtedly  competent  to  a  legislative  assembly  to 
institute  inquiries  relative  to  the  rights  of  its  members,  of  its  own 
mere  motion,  and  wilhout  the  intervention  of  any  complaint  on  the 
part  of  the  electors  or  of  one  claiming  a  seat ;  for,  otherwise,  the 
freedom  of  election  might  be  as  much  injured,  by  a  compromise 
between  contending  parties,  or  by  a  subsequent  buying  up  of 
dissatisfied  electors,  as  by  direct  bribery  at  the  election.  Any 
member,  therefore,  may  bring  foi-ward  an  inquiry  into  the  right  of 
any  other  member,  to  his  seat,  by  a  motion,  predicated  upon  facts 
which  are  notorious  to  the  assembly,  or  upon  statements  or  inqui- 
ries made  by  the  mover  himself.^  Sometimes,  also,  an  inquiry  is 
instituted  at  the  request  of  the  member  himself,  whose  right  is  im- 
plicated, either  upon  a  statement  or  motion  made  by  him,  or  upon 
his  suggestion,  or  by  a  letter  addressed  by  him  to  the  presiding 
officer.^ 

150.  A  much  more  common  mode  of  instituting  the  inquiry, 
especitdly  where  it  relates  to  the  election  or  return  rather  than  to 

1  Glnnville,  Ixxxiii.  60.  reference  to  these  subjects,  is  now  properly 

2  Notwitlistaiuiing  power  is  expressly  given  consitlered  to  be  as  full  and  perfect,  as  that  of 
by  the  constitution  of  the  United  States  to  either  branch  of  any  State  legislature.  See- 
each  of  tiie  two  houses  of  congress  to  judge  of  Spaulding  v.  Mead,  Clarke  &  Hall,  lo7,  161. 
the  elections,  returns,  and  qualifications  of  its  "  Glanville,  IIU;  Jlopkinlon,  Gushing,  S.  &  J., 
own  members,  an  attempt  was  early  made  to  6 ;  Dunstable,  Same,  19 ;  York,  Same,  30 ;  Cast 
restrict  the  right  to  judge  of  the  returns,  of  David  Bard,  Clarke  &  Hall,  116;  Case  of 
in  such  a  manner,  as  to  confine  it  to  the  John  P.Vati  Ness,  S-dmc,V12;  Williams  w  Bou>- 
inquiry  whether  they  conformed  to  the  rules  ers,  Same,  263 ;  see  also,  the  case  of  John 
prescribed  by  the  State  from  which  they  Hoiiie  Tooke,  in  the  Pari.  Reg.  LIX.  305,  320 
emanated.  But  the  attempt  did  not  succeed;  *  Case  of  Asahiel  Stea-ns,  Gushing,  S.  &  J., 
and  the  power  of  each  house  of  congress,  in  217. 


56  LEGISLATIVE  ASSEMBLIES.  [PaRT    I. 

any  subsequent  disqualification  of  a  member, — is  by  means  of  a 
petition,  (sometimes,  but  improperly,  denominated  a  remonstrance) 
of  some  party  interested,  either  as  an  elector,  or  as  claiming  the 
seat  in  question.  Where  this  mode  is  adopted,  the  investigation 
assumes  the  character  of  an  adversary  proceeding  before  a  judicial 
tribunal.  The  petition  should  state  the  facts  relied  upon  with 
such  certainty  as  to  give  the  sitting  member  reasonable  notice  of 
the  grounds  upon  which  his  right  is  controverted  ;  —  to  enable  the  ^ 
assembly  to  judge  whether  the  facts  alleged  are  verified  by  the 
proof; — and,  if  proved,  to  determine  whether  they  are  sufficient  to 
require  the  election  to  be  set  aside ;  and  the  petitioner  ought  not  in 
general  to  be  permitted,  without  the  consent  of  the  other  party,  to 
give  evidence  of  any  fact  not  substantially  set  forth  in  his 
petition. 

151.  An  inquiry  is  sometimes  suggested  into  the  right  of  a 
member  to  his  seat  by  an  inspection  of  the  returns.  In  Eng- 
land, the  returns  are  not  made  to  the  house  itself,  but  to  the  clerk 
of  the  crown  in  chancery,  in  whose  custody  they  remain,  and  by 
whom  they  are  brought  into  the  house,  whenever  required.  In  this 
country  it  is  supposed  to  be  the  general  practice,  for  the  returns  to 
be  made  to  the  assembly  itself,  in  the  first  instance,  or  if  made  to 
any  other  authority,  to  be  ultimately  laid  before  the  assembly  for 
its  inspection.  If  any  of  them  are  found  to  be  defective  in  point 
of  form,  the  members  thereby  returned  may  be  required  to  procure 
them  to  be  amended ;  or  if  they  contain  any  statement  or  sugges- 
tion of  facts,  tending  to  invalidate  the  election,  an  inquiry  may 
thereupon  be  instituted  into  the  merits  of  the  case.^ 

152.  The  validity  of  a  return  or  election,  unless  there  is  some 
special  order  of  the  assembly,  or  some  provision  of  law,  to  the  con- 
trary, may  be  examined  at  any  time  during  the  period  for  which  the 
election  purports  to  have  been  made ;  for  an  election  or  return, 
which  is  not  good  at  first,  cannot  be  made  so  by  any  lapse  of  time  ; 
ut  nullum  tempus  occurrit  regi,  ita  nee  reipnblicce ;^  but,  unless  the 
subject  is  brought  forward  seasonably,  that  is,  so  as  to  admit  of 
its  being  investigated  fully  and  fairly,  it  is  not  usual  for  an  investi- 
gation to  take  place.3  In  the  house  of  commons,  at  the  com- 
mencement of  each  session,  it  is  ordered,  that  all  persons,  who  will 


1  Truro,  Gushing,  S.  &  J.,  5;  Laneshorcnigh         ^  Haverford  West,  Glanville,  113. 
arid  New  Ashfwd,  Same,  125;  Case  of  Moses  F.         "  Sutton,  Gushing,  S.  &  J.,  80. 
Ftariny,  Same,  231;  Altleborouyh ,  Siime,  254. 


Chap.  VI.]      controverted  returns  and  elections.  57 

question  any  return  of  members  to  serve  in  parliament,  do  question 
the  same  within  fourteen  days  next  after  the  order,  and  so  wiiiiin 
fourteen  days  next  after  any  new  return  shall  be  brouglit  in. 
This  order,  although  merely  sessional,  that  is,  renewed  every  ses- 
sion, yet  being  invariably  adopted,  is  quite  equivalent  to  a  statute ; 
and  operates  practically  to  limit  the  time  for  the  commencement  of 
all  proceedings  for  questioning  a  member's  right  to  his  seat.^ 

153.  From  the  time  when  the  commons  established  their  right 
to  be  the  exclusive  judges  of  the  elections,  returns,  and  qualifica- 
tions of  their  own  members,  until  the  year  1770,  two  modes  of  pro- 
ceeding prevailed,  in  the  determination  of  controverted  elections, 
and  rights  of  membership.  One  of  the  standing  committees  ap- 
pointed at  the  commencement  of  each  session,  was  denominated 
the  committee  of  privileges  and  elections,  whose  function  was  to 
hear  and  investigate  all  questions  of  this  description  which  might 
be  referred  to  them,  and  to  report  their  proceedings,  with  their 
opinion  thereupon,  to  the  house,  fit'om  time  to  time.  When  an 
election  petition  was  referred  to  this  committee,  they  heard  the 
parties  and  their  witnesses  and  other  evidence,  and  made  a  report 
of  all  the  evidence,  together  with  their  opinion  thereupon,  in  the 
form  of  resolutions,  which  were  considered  and  agreed  or  disagreed 
to  by  the  house.  The  other  mode  of  proceeding  was  by  a  hearing 
at  the  bar  of  the  house  itself.  When  this  course  was  adopted,  the 
case  was  heard  and  decided  by  the  house,  in  substantially  the  same 
manner  as  by  a  committee.  The  committee  of  privileges  and  elec- 
tions although  a  select  committee  was  usually  what  is  called  an 
open  one ;  that  is  to  say,  in  order  to  constitute  the  committee,  a 
quorum  of  the  members  named  was  required  to  be  present,  but  all 
the  members  of  the  house  were  at  liberty  to  attend  the  committee 
and  vote  if  they  pleased. 

154.  With  the  growth  of  political  parties  in  parliament  ques- 
tions relating  to  the  right  of  membership  gradually  assumed  a 
political  character ;  so  that  for  many  years  previous  to  the  year 
1770,  controverted  elections  had  been  tried  and  determined  by  the 
house  of  commons,  as  mere  party  questions,  upon  which  the 
strength  of  contending  factions  might  be  tested.  Thus,  for 
example,  in  1741,  Sir  Robert  Walpole,  after  repeated  atricks 
upon  his  government,  resigned  his  otlice  in  consequence  of  an 
adverse  vote  upon  the  Chippenham  election.  Mr.  Hatsell  remarks, 
of  the  trial  of  election  cases,  as  conducted  under  this  system,  that 

1  In  the  legislative  assemblies  of  this  country,  no  such  restriction  exists,  it  is  beUeved. 


58  LEGISLATIVE   ASSEMBLIES.  [PaRT   I 

"  Every  principle  of  decency  and  justice  were  notoriously  and  openly 
prostituted,  from  whence  the  younger  part  of  the  house  were 
insensibly,  but  too  successfully,  induced  to  adopt  the  same  licen- 
tious conduct  in  more  serious  matters,  and  in  questions  of  higher 
importance  to  the  public  welfare."  Mr.  George  Grenville,  a  dis- 
tinguished member  of  the  house  of  commons,  undertook  to  propose 
a  remedy  for  the  evil,  and,  on  the  7th  of  March,  1770,  obtained  the 
unanimous  leave  of  the  house  to  bring  in  a  bill,  "  to  regulate  the 
trial  of  controverted  elections,  or  returns  of  members  to  serve  in 
parliament."  In  his  speech  to  explain  his  plan,  on  the  motion  for 
leave,  Mr.  Grenville  alluded  to  the  existing  practice  in  the  follow- 
ing terms :  "  Instead  of  trusting  to  the  merits  of  their  respective 
causes,  the  principal  dependence  of  both  parties  is  their  private 
interest  among  us ;  and  it  is  scandalously  notorious  that  we  are  as 
earnestly  canvassed  to  attend  in  favor  of  the  opposite  sides,  as  if 
we  were  wholly  self-elective,  and  not  bound  to  act  by  the  principles 
of  justice,  but  by  the  discretionary  impulse  of  our  own  inclinations ; 
nay,  it  is  well  known,  that  in  every  contested  election,  many  mem- 
bers of  this  house,  who  are  ultimately  to  judge  in  a  kind  of  judicial 
capacity  between  the  competitors,  enhst  themselves  as  parties  in 
the  contention,  and  take  upon  themselves  the  partial  management 
of  the  very  business,  upon  which  they  should  determine  with  the 
strictest  impartiality." 

155.  It  was  to  put  an  end  to  the  practices  thus  described,  that 
Mr.  GrenviUe  brought  in  a  biU  which  met  with  the  approbation  of 
both  houses,  and  received  the  royal  assent  on  the  12th  of  AprU, 
1770.  This  was  the  celebrated  law  since  known  by  the  name  of 
the  Grenville  act ;  of  which  Mr.  Hatsell  declares,  that  it  "  was  one 
of  the  noblest  works,  for  the  honor  of  the  house  of  commons,  and 
the  security  of  the  constitution,  that  was  ever  devised  by  any  minis- 
ter or  statesman."  It  is  probable,  that  the  magnitude  of  the  evil, 
or  the  apparent  success  of  the  remedy,  may  have  led  many  of  the 
contemporaries  of  the  measure  to  the  formation  of  a  judgment, 
which  was  not  acquiesced  in  by  some  of  the  leading  statesmen  of 
the  day,  and  has  not  been  entirely  confirmed  by  subsequent  experi- 
ence. The  bill  was  objected  to  by  Lord  North,  Mi-.  De  Grey,  after- 
wards chief  justice  of  the  common  pleas,  Mr.  Ellis,  Mr.  Dyson,  who 
had  been  clerk  of  the  house,  and  Mr.  Charles  James  Fox,  chiefly 
on  the  ground,  that  the  introduction  of  the  new  system  was  an 
essential  alteration  of  the  constitution  of  parliament,  and  a  total 
abrogation  of  one  of  the  most  important  rights  and  jurisdictions  of 
the  house' of  commons. 


CUAP.  VI.]         CONTROVERTED   RETURNS   AND   ELECTIONS.  59 

156.  The  leading  features  of  the  system,  which  was  thus  intro- 
duced, and  which  has  continued  ever  since,  with  certain  modifica- 
tions which  will  be  presently  alluded  to,  are  two ;  first,  the  estab- 
lishment of  tribunals,  with  exclusive  and  final  jurisdiction  to  decide 
upon  all  questions  relating  to  the  right  of  membership,  independ- 
ently of  the  house ;  and,  second,  the  selection  of  the  members  of 
these  tribunals  by  lot.  It  is  truC,  that  the  tribunals  thus  authorized 
were  composed  of  members  of  the  house  and  were  subject  individ- 
ually to  its  authority,  but  they  were  sworn  to  proceed  according  to 
the  laws  of  the  land,  and  their  determinations  were  not  subject  to 
the  revision  of  the  house.  The  following  is  an  outline  of  the 
original  system  of  the  Grenville  act.  A  petition  being  presented, 
calling  in  question  the  right  of  a  member  to  his  seat,  and  a  time 
assigne'd  for  its  consideration,  the  house  proceeded,  on  that  day,  to 
select  a  committee  for  the  trial,  by  lot.  For  this  purpose,  a  quorum 
of  one  hundred  members  was  requisite.  K  that  number  was 
present,  the  names  of  all  who  were  not  entitled  to  be  excused,  from 
their  age  or  other  cause,  were  put  into  an  urn,  and  forty-nine  of 
them  drawn  out,  one  by  one,  and  announced  to  the  speaker  by  the 
clerk  of  the  house.  The  parties  interested,  having  been  previously 
notified  to  be  in  attendance,  were  then  called  in,  and  furnished  with 
lists  of  the  forty-nine  names  so  drawn.  They  were  then  allowed 
to  strike  off,  alternately,  and  one  by  one,  the  names  of  such  as  they 
thought  proper  to  exclude,  until  the  number  on  the  list  was  reduced 
to  thirteen.  Each  of  the  parties  was  then  allowed  to  name  a  mem- 
ber to  be  added,  who  were  called  the  nominees  of  the  respective 
parties.  The  fifteen  members,  thus  selected,  constituted  a  com- 
mittee for  the  trial  of  the  case  in  question.  A  distinct  committee 
was  selected  for  each  case.  When  the  committee  had  been  ap- 
pointed, they  were  sworn  by  the  clerk  of  the  house  to  the  faithful 
performance  of  their  duty,  and  then  proceeded  with  the  trial  of  the 
case  for  which  they  were  selected.  The  committee  was  authorized 
to  compel  the  attendance  of  witnesses,  and  to  examine  them  under 
oath.  They  were  attended  by  a  clerk  and  short-hand  waiter  ap- 
pointed by  the  clerk  of  the  house.  They  elected  their  own  chair- 
man, who,  voting  in  the  first  instance  with  the  other  members,  was 
entitled  to  a  second  or  casting  vote,  if  the  votes  were  equal. 

157.  The  system  of  Mr.  Grenville  underwent  various  modifica- 
tions, from  time  to  time,  without  any  material  departure  from  the 
principles  on  which  it  was  founded.  By  the  9  Geo.  4,  c.  22,  thirty- 
three  names  only  were  balloted  for,  from  which  each  of  the  parties 
was  entitled  to  strike  off  eleven,  thus  reducing?  the  number  of  the 


60  LEGISLATIVE   ASSEMBLIES.  [PaRT   L 

committee  to  eleven.  At  length  it  began  to  be  perceived,  that  the 
operation  of  the  system  was  not  so  effectual,  as  its  framers  had 
supposed,  in  securing  an  impartial  tribunal ;  the  party,  whose  friends 
in  the  house  attended  on  the  day  appointed  for  a  ballot,  in  the 
greatest  force,  was  likely  to  have  a  preponderance  in  the  committee ; 
and  thus  it  was  found  that  the  expedient  of  chance  did  not  operate 
as  a  sufficient  check  to  party  spirit  in  the  appointment  of  election 
committees.  Partiality  and  incompetence  were  very  generally  com- 
plained of,  in  the  committees ;  and,  in  1839,  an  act  passed,  (2  &  3 
Victoria,  c.  38,  called  Sir  Robert  Peel's  Act,)  establishing  a  new 
system,  upon  somewhat  different  principles,  so  far  as  regards  the 
appointment  of  the  committee,  which  increases  the  responsibility 
of  individual  members,  and  leaves  but  little  to  the  operation  of 
chance. 

158.  According  to  the  new  system,  the  speaker,  at  the  beginning 
of  every  session,  nominates  six  members  as  the  "  general  committee 
of  elections,"  whose  names  are  submitted  to  the  house ;  if  not  dis- 
approved of,  within  the  three  next  sitting  days,  the  members  so 
named  become  the  committee  ;  if  any  or  all  of  them  are  objected  to 
by  the  house,  the  speaker  makes  a  new  appointment  in  the  same 
manner,  wdthin  three  days.  The  disapproval  may  be  general,  in 
respect  to  the  constitution  of  the  whole  committee,  or  specially 
relating  to  particular  members  named ;  and  the  speaker,  in  his  new 
appointment,  may  name  again  or  not,  as  he  pleases,  those  members 
who  have  not  been  specially  disapproved.  All  election  petitions 
are  referred  to  this  committee,  whose  duty  it  is  to  choose  a 
committee  for  the  trial  of  each,  in  the  manner  prescribed  in  the 
act. 

159.  Before  the  general  committee  proceed  to  choose  a  committee 
for  the  trial  of  any  petition,  an  alphabetical  list  of  all  the  members 
liable  to  serve  is  prepared,  under  the  supervision  of  the  house,  and 
referred  to  the  committee.  The  first  duty  of  the  committee  is  to 
select  from  this  list  six,  eight,  ten,  or  twelve  members  to  serve  as 
chairmen  of  election  committees,  who  are  called  the  "  chairman's 
panel,"  and  whose  names  are  reported  to  the  house.  When  the 
general  committee  have  selected  the  chairmen's  panel,  they  divide 
all  the  members  remaining  upon  the  list,  into  five  panels,  in  what- 
ever manner  they  please,  provided  that  each  panel  contains,  as 
nearly  as  possible,  the  same  number  of  members.  These  panels 
are  reported  to  the  house,  and  the  clerk  decides  by  lot  at  the  table, 
the  order  in  which  they  shall  stand,  and  distinguishes  each  by  a 
number      The  panels  are  then  returned  to  the  general  committee, 


Chap.  VI.]      controverted  returns  and  elections.  61 

and  the  committees  for  trial  are  chosen  from  each,  in  succession, 
according  to  its  number. 

160.  When  an  election  petition  has  been  referred  to  the  general 
committee,  the  latter  gives  previous  notice  to  the  parties  of  the 
time  and  place  at  which  the  committee  will  be  chosen ;  and,  at  the 
time  appointed,  proceeds  to  choose  six  members  from  the  panel 
standing  next  in  the  order  of  service.  The  parties  in  attendance 
are  then  called  in,  and  the  names  of  the  committee  are  read  over  to 
them.  The  members  or  any  of  them  may  be  objected  to  by  the 
parties,  and,  if  the  objection  is  sustained,  a  new  appointment  is 
made  from  the  same  panel.  When  six  members  have  been  chosen 
against  whom  no  objection  is  sustained,  they  are  notiiierl  o^  iutii 
appointment,  by  the  clerk  of  the  general  committee.  A.n)  member 
thus  chosen  may  attend,  if  he  pleases,  before  the  general  com- 
mittee, and  be  excused  from  service,  or  discharged  on  the  ground 
of  disqualification,  if  he  can  prove  his  excuse  or  disqualification,  to 
the  satisfaction  of  the  committee.  If  a  member  is  discharged  or 
excused,  a  new  appointment  takes  place,  in  the  same  manner  as 
before. 

161.  When  the  six  members  are  finally  chosen,  the  chairman's 
panel  select  one  of  their  own  body  as  the  chairman,  and  notify  the 
general  committee  of  elections  of  his  appointment.  The  general 
committee  add  this  name  to  the  other  six,  and  communicate  it  to 
the  parties,  who  may  object  to  the  chairman  as  well  as  to  the  other 
members  of  the  committee.  At  the  next  meeting  of  the  house,  the 
seven  members  are  required  to  attend  in  their  places,  and  the  gen- 
eral committee  report  their  names  to  the  house.  The  members  are 
sworn  at  the  table  by  the  clerk,  "  weU  and  truly  to  try  the  matter 
of  the  petition  referred  to  them,  and  a  true  judgment  to  give, 
according  to  the  evidence."  The  time  for  the  meeting  is  then 
fixed,  and  the  committee  being  duly  constituted  and  organized  is 
ready  to  proceed. 

162.  The  mode  of  proceeding  in  the  committee,  and  the  inciden- 
tal powers  conferred  upon  it,  do  not  require  to  be  stated  in  this 
place ;  they  are  substantially  the  same  as  in  other  committees,  with 
the  exception,  that  election  committees  are  authorized  by  law  to 
administer  oaths  to  witnesses,  and  will  be  more  appropriately  con- 
sidered in  connection  with  the  general  subject.  When  a  case  is 
concluded,  and  the  committee  has  had  due  deliberation  upon  the 
merits  of  it,  it  is  required  to  decide  distinctly :  —  first,  whether  the 
petitioner,  or  the  sitting  member,  or  either  of  them,  is  duly 
returned,  or  elected ;  or  second,  whether  the  election  is  void  ;  or, 

6 


62  LEGISLATIVE   ASSEMBLIES.  [PaRT   1. 

third,  whether  a  new  writ  ought  to  issue.  The  determination  of  the 
eomniittee  upon  these  points  is  final  between  the  parties  ;  and  the 
house,  on  being  informed  of  it,  carries  it  into  execution. 

163.  It  will  be  perceived  from  the  foregoing  account  of  the  con- 
stitution of  election  committees,  as  now  regulated  by  law,  that  the 
system  of  the  GrenvUle  act  has  undergone  no  other  substantial 
change  than  in  the  mode  of  appointing  the  committee.  Whether 
the  present  mode  will  be  effectual  to  secure  a  competent  and  at  the 
same  time  impartial  tribunal  remains  to  be  determined  by  experi- 
ence. A  committee,  selected  by  competent  persons,  acting  under 
a  sense  of  public  duty,  will  be  more  likely  to  possess  the  requisite 
ability,  than  one  selected  by  lot ;  and  so  far,  doubtless,  the  present 
is  an  improvement  upon  the  old  system.  Impartiality  in  the  com- 
mittee can  only  be  secured  by  the  appointment  of  members,  who, 
though  they  belong  to  one  or  another  of  the  political  parties,  shall 
yet  be  entirely  independent  of  party  in  the  performance  of  a  judi- 
cial duty ;  and  herein  it  is  perhaps  equally  true,  that  the  most 
proper  persons  in  the  assembly  are  more  liliely  to  be  selected  by  a 
competent  committee,  than  by  lot.^ 

164.  In  the  constitution  of  the  United  States,  and  in  the  greater 
number  of  the  State  constitutions,  it  is  merely  provided,  that 
"  each  house  shall  be  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  own  members."  In  that  of  Massachusetts,  there  is 
a  clause,  that  each  house  "  may  try  and  determine  all  cases  where 
their  rights  and  privileges  are  concerned,  and  which,  by  the  consti- 
tution, they  have  authority  to  try  and  determine,  by  committees  of 
their  own  members,  or  in  such  other  way  as  they  may  respectively 
think  best."  In  the  constitution  of  Pennsylvania,  it  is  provided, 
that  "  contested  elections  shall  be  determined  by  a  committee,  to 
be  selected,  formed,  and  regulated,  in  such  manner  as  shaU  be 
directed  by  law."      The  constitutions  of   Kentucky,  Ohio,  Lou- 


1  This  subject  has  occupied  more  attention,  This  admirable  work  was  first  published  in 
than  perhaps  was  necessary  for  the  purpose  1776,  from  the  author's  mnnuscript,  with  a 
immediately  in  view;  partly  on  account  of  historical  introduction,  giving  an  account  of 
its  prcat  importance;  but,  chiefly,  for  the  the  ancient  right  of  determining  cases  of  con- 
reason,  that,  it  seemed  necessary  to  explain  troverted  elections.  Since  the  new  system 
fully  the  constitution  of  those  tribunals,  went  into  operation,  the  cases  have  been 
vvhose  decisions  form  a  distinct  branch  of  reported  and  published  in  several  different 
English  mrisprudence.  Prior  to  the  passing  collections,  forming  together  quite  a  body  of 
of  the  Gienville  act,  one  small  collection  only  what  may  be  called  election  jurisprudence. 
of  cases  of  election  law  had  been  made.  Two  volumes  only  have  hitlierto  been  pub- 
that  of  Mr.  Sergeant  Glanville,  who  was  lished  in  this  country,  one  of  cases  in  the 
chaii-man  of  the  committee  of  privileges  and  congress  of  the  United  States,  and  the  other 
elections  in  the  21st  and  22d  vears  of  James  I.  of  cases  in  the  legislature  of  Miissachusetts. 


Chap.  VI.]       controverted  returns  and  elections.  63 

isiana,  Florida,  Mississippi,  Alabama,  Iowa,  and  Texas,  after 
declaring,  that  "  each  house  shall  be  the  judge  of  the  qualifications, 
elections,  and  returns  of  its  members,"  add,  "  but  a  contested  elec- 
tion shall  be  determined  in  such  manner  as  shall  be  directed  by 
law."  In  Missouri,  the  constitution  declares  that  "the  general 
assembly  shall  have  power  to  pass  laws  regulating  proceedings  in 
cases  of  contested  elections  of  senators  and  representatives." 
These  different  constitutional  provisions  have  led  to  the  introduc- 
tion of  corresponding  proceedings  in  the  trial  of  controverted  elec- 
tions. In  Pennsylvania,  a  system  appears  to  have  been  estab- 
lished, substantially  the  same  with  that  of  the  Grenville  act.  In 
some,  if  not  in  all  of  the  States  last  mentioned,  the  trial  of  contro- 
verted elections  is  more  or  less  regulated  by  law;  without 
however,  the  establisliment  of  any  new  tribunal.  In  Massachu- 
setts, the  authority  given  to  the  two  houses  to  try  controverted 
elections  by  committees  of  their  own  members,  or  in  such  other 
way,  as  they  may  respectively  think  best,  has  never  been  exercised. 

165.  In  all  the  legislative  assemblies  of  the  United  States,  there- 
fore, except  those  in  which  the  subject  is  particularly  regulated  by 
law,  questions  relating  to  the  rights  of  membership  are  conse- 
quently to  be  investigated  and  determined  in  the  ordinary  course  of 
proceeding.  Two  methods  only  appear  to  be  in  use,  namely :  first, 
a  trial  at  the  bar  of  the  assembly,  in  which  the  case  is  investigated 
directly  and  decided  upon  by  the  assembly  itself ;  and,  second,  a 
preliminary  investigation  by  a  committee,  and  a  final  determi- 
nation by  the  assembly,  on  their  report.^  These  modes  of  pro- 
ceeding will  be  explained  hereafter.  When  the  latter  mode  is 
pursued,  it  is  the  duty  of  the  committee  to  report  the  state  and 
particulars  of  the  proof,  as  well  as  their  conclusion  thereupon  ;  the 
house  not  being  concluded  by  the  opinion  of  the  committee  in 
matter  of  fact,  any  more  than  in  matter  of  law.^ 

166.  It  was  for  a  long  time  the  practice  of  the  house  of  commons, 
on  the  decision  of  a  controverted  election  or  return,  to  require  the 
attendance  of  the  clerk. of  the  crown  in  chancery  with  the  return  in 
question,  and,  also  of  the  returning  officers  by  whom  it  was  made, 
and  to  direct  the  latter  to  amend  the  return  agreeablv  to  the 
decision  of  the  house,  or  to  take  off  the  original  return  from  the 
file,  and  substitute  a  new  one.  At  the  present  day,  the  attendance 
of  the  returning  officers  is  dispensed  with,  and  the  amendment  or 

>  Ramsny  v.  SmitJi,  Clarke  &  Hall,  23;  ing,  S.  <S:J.,  3;  Vafsalborottffh,  Same,  4;  Wo- 
Uooi-e  V.  Levns,  Same,  128;   Ckimhridge,  Cush-     hum,  Same,  7. 

«  Noifolk,  Glanvillo,  4  a 


64  LEGISLATIVE    ASSEMBLIES.  [PaRT   L 

substitution  is  made  by  the  clerk  of  the  crown.  In  our  legislative 
assemblies,  it  is  believed,  the  order  or  decision  of  the  house  is  of 
itself  generally  regarded  as  sufficient,  without  any  actual  alter- 
ation or  amendment  of  the  return. 


Section   IL  —  Of  Rights  of  Membership,  as  affected  by  the 
Form  or  Substance  of  the  Return. 

167.  It  has  already  been  stated,  that  the  right  of  a  member  to 
his  seat  may  depend  upon,  or  be  involved  in,  the  return,  either  in 
form  or  in  substance,  without  regard  to  the  election.  Cases  of 
this  description  are  now  to  be  considered. 

168.  If  a  return  is  good  in  substance,  it  is  not  to  be  impeached 
or  set  aside  for  want  of  form,  or  for  surplusage  in  matter ;  as,  for 
example,  where  there  are  two  opposing  sets  of  returning  officers  in 
a  constituency  entitled  to  two  members,  and  each  set  makes  a 
return  of  fr^vo  members,  one  of  whom  is  the  same  in  both  returns, 
the  person  so  returned  is  duly  returned.^ 

169.  But,  if  a  return  is  absolutely  and  irreconcilably  repugnant, 
it  is  utterly  void ;  as,  if  three  members  are  returned  from  a  constit- 
uency entitled  to  only  two,  and  all  of  them  are  inserted  in  one 
return,  or  each  of  them  in  a  separate  return,  or  two  of  them  in  one, 
and  the  third  in  another,  without  any  thing  in  either  case  to  show 
the  order  or  succession  in  which  they  were  chosen  ;  then,  although 
the  election  of  one  or  more  of  them  may  be  good,  yet,  for  want  of 
a  certain  and  sufficient  return,  whereby  the  person  or  persons  duly 
elected  may  be  designated,  the  house  cannot  take  any  notice 
thereof.^ 

170.  Where  returning  officers  make  a  mistake  in  the  name  of 
the  person  elected,  and,  in  consequence  thereof,  return  one  who 
was  not  chosen,  the  mistake  may  be  corrected,  either  upon  the 
petition  of  the  person  really  elected,  or  on  motion  merely,^  or,  it  is 
presumed,  upon  the  representation  of  the  returning  officers.  Thus 
where  John  Maynard  was  elected,  but,  by  mistake,  Charles  May- 
nard  was  returned,  the  return  was  amended  upon  the  petition  of 
the  former,  who  was  thereupon  admitted  to  his  seat.^ 

171.  Where  the  returning  officers,  by  mistake,  consider  votes 
which  are  really  given  for  one  person  as  given  for  two  or  more,  as, 

1  Soulhwark,  Glanville,  9.  *  Chambers's  Dictionary,  Christian  Names. 

i  Smlhwark,   Glanville,  9,  a;    Pontefract,        <  C7«i?penfeam,  Glanville,  47,  69. 
Same,  230. 


Chap.  VL]       contkov^erted  returns  and  elections.  65 

for  example,  where  they  regard  votes  given  for  A.  B.  and  for  A.  B., 
Junior,  as  given  for  two  persons;^  or,  where,  in  copying  the  lists 
of  votes  to  be  transmitted  by  the  receiving  officers  to  the  returning 
officers,  a  mistake  is  made  in  the  name  of  any  of  the  persons  voted 
for,  so  that  a  part  of  the  votes  given  for  one  appear  to  be  given  for 
another  person,  thereby  apparently  defeating  the  election  of  the 
former; 2  and,  in  consequence  of  such  mistakes,  in  either  case,  a 
person  is  returned  who  was  not  in  fact  elected,  the  return  will  be 
set  aside,  and  the  person  really  elected  admitted  as  a  member. 

172.  Where  a  return  is  obtained,  by  means  of  some  fraud  or 
trick,  practised  by  or  with  the  consent  of  the  returning  officers  ;3 
or  where  they  are  intimidated  by  riots  and  disturbance  from 
making  a  return  of  the  person  duly  elected,  and  are  compeUed  to 
return  another;^  or  where  they  are  corrupted  by  bribery  to  make  a 
false  return;^  in  all  these  cases,  the  return  will  be  set  aside,  and 
the  person  duly  elected  admitted  to  a  seat.^ 

173.  Where  a  constituency  consists  of  several  municipal  cor- 
porations, the  votes  of  which  are  required  by  law  to  be  transmitted 
to  the  returning  officers,  on  or  before  a  certain  time  fixed,  a  vafid 
return  may  be  made  upon  the  votes  received  at  that  time ;  but, 
upon  proof  that  other  votes  were  received  at  the  election,  and  not 
duly  transmitted  to  the  returning  officer,  sufficient  to  change  the 
election,  the  return  will  be  set  aside,  and  the  person  really  elected 
admitted  to  the  seat.'^ 

174.  As  it  is  the  duty  of  returning  officers,  in  the  fii-st  instance, 
to  decide  upon  the  result  of  an  election,  and,  if,  in  their  judgment, 
an  election  has  taken  place,  to  make  a  retmn  of  the  persons 
elected;  where  they  undertake  to  refieve  themselves  from  this 
responsibility,  by  making  a  conditional  return,  that  is,  by  stating 
certain  facts,  and  referring  the  question  of  their  legal  operation  to 
the  judgment  of  the  body  to  which  the  return  is  made,  the  return 
will  be  received  as  an  unconditional  one ;  and  the  only  efiect,  if 
any,  of  the  special  statement  of  facts  will  be  to  give  rise  to  an  inves- 
tigation of  the  merits  of  the  election.® 

1  Turner   v.   Baylies,   Clarke  &   Hall,  234;  «  3/arpetfi,  Douglass,  I.  147. 

Williams  v.  Bowers,  Same,  263.    Willouyhby  v.  »  Rogers  on  Elections.  246:  Fourth  Institute, 

Smith,  Same,  265;  Gwi/on  v.  Sa^e,  Same,  348;  23;  D'Ewes,  183. 

Iluyunin  v.  Ten  Eych,  Same,  501 ;    Wriyhi  v.  «  As  to  riots  and  bribery,  see  the  section  oa 

Fisher,  Same,  518 ;  Lynn,  Gushing,  S.  &  J.,  236.  controverted  elections. 

^  Root  V.  Adiims,  Clarke  &  Hall,  291;  Mai-  i  Spaulding  v.  Mead,  Clarke  &  Hall.  167; 

lary  v.   Merrill,  Same,  330,   331;     Colden  v.  Mallary  x.  Merrill,  Same,  SS4. 

Sharpe,  Same,  369.  '  Rogers  on  Elections,  41 ;  BeeraUton,  Comra. 

3  JIale  on  Elections,  338;  Fourth  Institute,  Jour.  I.  14;    Altkborough,  Cashing,  S.  &  J., 

19;  Glanville,  19.  254. 

6* 


66  LEGISLATIVE    ASSEMBLIES.  [PaBT  I. 


Section  III.      Of   Elections   of,   and    Votes   given    for,    dis- 
qualified Persons. 

175.  If  an  election  is  made  of  a  person,  who  is  ineligible,  that  is, 
incapable  of  being  elected,  the  election  of  such  person  is  absolutely 
void ;  even  though  he  is  voted  for  at  the  same  time  with  others, 
who  are  eligible,  and  who  are  accordingly  elected ;  ^  and  this  is 
equally  true,  whether  the  disability  is  known  to  the  electors  or 
not;  whether  a  majority  of  all  the  votes,  or  a  plurality  only,  is 
necessary  to  the  election ;  and  whether  the  votes  are  given  orally 
or  by  ballot. 

176.  The  principle  above  applies  equally,  where  the  constitution 
or  law  points  out,  among  other  eligible  persons,  the  particular  can- 
didates to  be  voted  for ;  in  which  case,  votes  given  for  other  persons 
are  void.  Thus,  the  constitutions  of  Maine  and  Massachusetts 
providing,  that  in  case  of  a  failure  to  elect  senators,  at  the  general 
election,  the  deficiency  shall  be  suppUed  on  the  day  of  the  meeting 
of  the  legislature,  by  such  senators  as  shall  be  elected,  and  the 
members  of  the  other  branch,  from  among  the  persons  voted  for  and 
not  elected  as  senators,  all  votes  given  on  such  occasions,  for  any 
other  than  the  candidates  designated  by  law,  though  otherwise 
eligible,  are  thrown  away. 

177.  In  England,  where  a  plurality  only  is  necessary  to  an  elec- 
tion, and  where  the  votes  are  given  orally,  it  is  also  held  that  if  the 
electors  have  notice  of  the  disquahfication  of  a  candidate,  every 
vote  given  for  him  afterwards,  will  be  thrown  away,  and  con- 
sidered as  not  having  been  given  at  all.^  The  effect  of  this  rule  is, 
that  not  only  will  the  election  of  a  disqualified  person  be  held 
void ;  but  if  such  election  takes  place  after  notice  of  the  disqualifi- 
cation is  given  to  the  electors,  the  candidate  having  the  next 
highest  number  of  votes  will  be  elected.^     This  doctrine,  however 

1  Male  on  Elections,  336.  Jour.   XVIII.   672;    Flintshire,    Peckwell,  I. 

'^  King  v.  Monday,  Cowper's  Reports,  537;  526;  Sowf/iwari  (2d),  Clifford,  130;    Canterbury 

Rex  \.  Hawkins,  East's  Reports,  X.   211,  and  (2d),  Clifford,   353;    Kircudbright,   Luders,  I. 

cases   there  cited;    Dow's   Reports,   II.  124;  72;    Radnorshire,  Peckwell,  1.496;    Leomin- 

Claridge    v.    Evelyn,    Barnewall   and   Alder-  ster,  Corbet  «&  Daniel,  1;  Leominster,  Rogers, 

son's  Reports,  V.  81;  iJea;  V.  Cbe,  Hey  wood  on  app.  ix.;     C(yrk   County,   Knapp  &   Ombler, 

County  Elections,   538;   Douglass's  Reports,  406;    Belfast,   Falconer  &    Fitzherbert,    603; 

398,  n. ;  i?ea;  V.  5?!sse//,  Heywooil,  537;  i?ea;  V.  Rogers  on  Elections,  224.     See   also   Male  on 

Parry,  East,  XIV.  549;  i?ex  V.  i?7i'(%e,  Maule  Elections,  836,   and  Abingdon,    Douglass,   L 

&  Selwyne's  Reports,  I.  76.  419. 

'  Fife,  Luders,  I.  455 ;  Cockermouth,  Comm. 


Chap.  VL]      controverted  returns  and  elections.  67 

hard  it  may  seem,  is  founded  in  the  familiar  principle,  tliat  every 
man  is  bound  to  know  the  law  with  reference  to  any  act  which  he 
undertakes  to  do ;  and,  consequently,  that  when  an  elector  is 
apprised  of  the  fact  of  disqualification  of  a  candidate,  and  notwith- 
standing gives  his  vote  for  him,  the  elector  takes  upon  himself  the 
risk  of  losing  his  vote,  if  his  construction  of  the  law  turns  out  to  be 
wrong.  ^ 

178.  In  this  country,  it  is  equally  true,  that  the  election  of  a  dis- 
qualified person  is  absolutely  void ;  and,  in  those  States  where  a 
plurality  elects,  and  where  the  votes  are  given  orally,  as  in  Eng- 
land, votes  given  for  a  candidate  after  notice  of  his  disqualification 
are  thrown  away,  and  the  candidate  having  the  next  highest 
number  of  votes  is  elected. 

179.  In  reference'  to  elections  by  ballot,  in  which  secrecy  is  the 
distinguishing  feature,  and,  in  which,  consequently,  neither  the 
retm-ning  officers,  nor  the  electors  themselves,  are  supposed  to 
know  for  whom  the  votes  are  given,  until  the  result  is  declared ; 
it  seems  not  unreasonable,  to  consider  the  votes  for  ineligible  can- 
didates to  be  thrown  away,  in  all  cases,  and  the  opposing  candi- 
date elected,  where  the  electors  know  or  must  be  presumed  to 
know  the  disabifity ;  and,  in  all  cases  where  there  is  no  such  actual 
or  presumed  knowledge,  to  hold  the  whole  proceeding  merely 
void. 

180.  In  reference  to  elections,  in  which  an  absolute  majority  is 
requisite  to  a  choice,  and,  in  which,  consequently,  the  whole  num- 
ber of  votes  received  is  first  to  be  ascertained,  votes  given  for  ineli- 
gible persons  must  of  course  be  excluded  from  the  enumeration ; 
for  the  reason,  that  as  the  whole  balloting  would  be  void,  and  all 
the  votes  excluded,  if  they  were  all  for  such  candidates,  it  would 
be  preposterous  to  enumerate  such  votes,  where  they  constituted  a 
part  only  of  the  votes  given  in.  If,  in  consequence  of  such  exclu- 
sion, the  result  of  the  election  would  be  difierent  from  w^hat  it 
would  otherwise  be,  the  whole  proceeding  must  perhaps  be  held 
void  or  valid,  according  as  the  electors  have  actual  or  presumed 
knowledge  of  the  ineligibility  of  the  persons  for  whom  the  excluded 
votes  are  given. 

Section  IV.  —  Of  Elections  as  affected  by  Proceedings  inju- 
rious TO  THE  Freedom  of  Election. 

181.  The  great  principle,  which  lies  at  the  foundation  of  all 
elsctive  governments,  and  is  essential  indeed  to  the  very  idea  of 

-  Kogei-s  oj  Elections,  22G. 


6S  LEGISLATIVE   ASSEMBLIES.  [PaRT   L 

election,  is,  that  the  electors  shall  be  free  in  the  giving  of  their  suf- 
frages. This  principle  was  declared  by  the  English  parliament, 
with  regard  to  elections  m  general,  in  a  statute  of  Edward  I.,^  and 
with  regard  to  elections  of  members  of  parliment,  in  the  Declara- 
tion of  Rights.2  The  same  principle  is  asserted  or  implied  in  the 
constitutions  of  aU  the  States  of  the  Union.  Freedom  of  election 
is  violated  by  external  violence,  by  which  the  electors  are  con- 
strained, or  by  bribery,  by  which  their  will  is  corrupted ;  and,  in  all 
cases,  where  the  electors  are  prevented,  in  either  of  these  ways, 
from  the  free  exercise  of  their  right,  the  election  will  be  void 
without  reference  to  the  number  of  votes  ihereby  affected. 

1.    Riots. 

182.  Wherever  the  freedom  of  election  is  violated  by  any  riot, 
disturbance,  or  tumult,  at  the  poUs,  by  which  the  proceedings  are 
actually  interrupted ;  although  the  returning  officer  may  not  thereby 
be  prevented  from  completing  the  poU  and  making  a  return,  the 
election  will  be  void.^ 

183.  A  riot  may  proceed  by  actual  force  or  violence,  or  by  a  dis- 
play of  numerical  strength,  accompanied  with  threats ;  and,  though 
no  actual  violence  takes  place,  yet  if  the  conduct  of  the  parties 
engaged  is  of  such  a  character  as  to  strike  terror  into  the  mind  of  a 
man  of  ordinary  firmness,  and  to  deter  him  from  proceeding  to  the 
poll,  the  election  can  hardly  be  said  to  be  free.* 

184.  It  is  necessary,  also,  to  the  existence  of  such  a  riot  as  will 
avoid  an  election,  that  it  should  be  founded  on  system,  or,  at  least, 
upon  premeditation ;  for  a  casual  affray,  or  an  accidental  disturb- 
ance, without  any  intention  of  overawing  or  intimidating  the  elec- 
tors, cannot  be  considered  as  affecting  the  freedom  of  election.^ 

185.  And,  where  the  proceedings  at  an  election  are  interrupted 
by  riots,  the  election  will  be  held  void,  without  reference  to  the 
number  of  votes  thereby  affected.*^ 

2.   Bribery. 

186.  The  freedom  of  election  may  also  be  violated  by  corrupting 
the  wiU  of  the  electors,  by  means  of  bribery,  as  weU  as  by  intimi- 
dating or  preventing  them  by  external  violence  from  exercising  the 

13  Edward  I.   chap.   5.    The  language  is:         2  Douglass,  IL  403. 
'  Because  elections  ought  to  be  free,  the  king         »  Male  on  Elections,  125,  337. 
commandeth,  upon   great  forfeiture,  that  no         *  Norfolk  Peiiiion,  Comra.  Jour.  IX.  631; 

man,  by  force  of  arms,  nor  by  malice  or  men-  Heywood,  546. 
acing,  shall  disturb  any  to  make   free   elec-         ^  Rogers  on  Elections,  242. 
tion."  *  Rogers  on  Elections.  243. 


Chap.  VL]      controverted  returns  and  elections.  69 

right  of  suffrage.^  According  to  the  definition  given  by  a  learned 
writer  on  the  law  of  elections :  -  —  "  Wherever  a  person  is  bound 
by  law  to  act  without  any  view  to  his  own  private  emolument,  and 
another,  by  a  corrupt  contract,^  engages  such  person,  on  condition 
of  the  payment  or  promise  of  money  or  other  lucrative  considera- 
tion, to  act  in  a  manner  which  he  shall  prescribe,  both  parties  are, 
by  such  contract,  guilty  of  bribery." 

187.  In  t'he  application  of  this  definition  to  cases  of  controverted 
elections,  it  must  be  made  to  appear,  first,  that  the  act  of  bribery 
was  at  least  inchoate,  if  not  complete,  before  the  election ;  for  a 
distribution  of  money  afterwards,  unless  coupled  with  an  act  done 
or  promise  made  before,  however  it  may  induce  suspicion,  will  not 
be  sufficient  to  raise  a  presumption  in  a  court  of  justice ;  *  and 
second,  that  the  bribery  was  committed  by  the  candidate  himself, 
or  by  some  one  on  his  behalf,  that  is,  employed  by  him ;  for,  other- 
wise, it  would  be  in  the  power  of  any  officious  or  ill  designing  per- 
son to  avoid  an  election,  by  means  of  an  act  of  bribery  committed 
by  himself  for  the  very  purpose.^ 

188.  The  actual  giving  of  money  to  a  voter  is  only  one  form  of 
consideration  for  the  corrupt  contract  of  bribery.  The  offence  is 
equally  committed  by  treating  or  entertainment  of  any  kind ;  ^ 
payment  of  travelling  or  other  expenses,  or  for  loss  of  time;"  or 
(in  England)  advancing  money  to  purchase  the  freedom  of  the  cor- 

1  Mnle  on  Election?,  387,  347;  Douglass,  11.  town  to  elect  the  whole  number  (being  six)  of 

403 ;  See  Rogers  on  Elections,  245.  representatives,  to  which  it  was   entitled  by 

-  Lord  Glenbervie,  in  his  Notes  to  St.  Ives,  law,  of  a  particular  party,  gave  a  bond,  for  the 

Douglass,  IL  400.  use  of  the  inhabitants,  with  a  condition,  that 

8  Mere  solicitation,  on  the  part  of  an  elector,  the  whole  expense  of  six  members  should  not 

unaccepted  by  the  candidate,  or  a  mere  offer,  exceed  the  pay  of  two,  and  six  members  of  the 

on  the  part  of  a  candidate,  unaccepted  by  the  party  in  question  were    elected  accordinclv, 

voter,  will  not  constitute  bribery.    See  Rogers  the  election  was  adjudged  void,  although  the 

on  Elections,  252, 253.  members  elected  had  no  agency  in  procuring 

*  Male    on    Elections,   347.     See   Sudbury,  the  bond  to  be  given. 

Douglass,  II.  137;    Cirencester,  Peckwell,  I.  ^  MuMlesex,  Peckwell,  11.31;  Londonderry, 

466;    Dublin,   Falconer  &    Fitzherbert,    204;  Perry  &    Knapp,    27S;  Corbet  &  Dan.  255; 

Lord  lliintiuijtower  v.   Gardiner,  Dowling  &  Ilere/ordshire,   Peckwell,   I.   185;    Southwark, 

Ryland's  Reports,  IL  450;  Barnewall  &  Cress-  Clifford,  25;  Benoick,  Peckwell,  I.  404;  J/on<- 

well's  Reports,  I.  297.  go'nery,  {2d,)  Perry  &  Knapp,  404;  Mansfeld, 

5  Male   on   Elections,   352,  e.    It   does  not  Cashing,  S.  &  J.,  17. 

seem  to  be  necessary,  in  all  cases,  that  the  ''Newport,  Comm.  Jour.  XTIL  112;  Ipsicich, 

persons  returned  should  participate  in  the  brib-  Luders,  I.  21 ;  Benoick,  Peckwell,  L  401 ;  Dur- 

erj-,  any  further   than  by  taking   advantage  ham,    Peckwell,    IL   78;    Grantham,    Comm. 

of  it;  as,  for  example,  where  the  whole  con-  Jour.   LXXV.  443.    See  Bremridge  v.  Camp- 

Btituency  is  affected  by  the  improper  influence,  bell,    Carrington  &  Payne's  Reports,  V.  186; 

In  the  case  of  Gloucester,  in  Massachusetts,  Baynturn  v.  Cottle,  Manning  &  Ryland's  Re- 

(Cushiiig,  S.  &  J.  82,)  where  it  appeared  that  ports,  I.  265. 
iertain  individuals,  with  a  view  to  induce  the 


70  LEGISLATIVE  ASSEMBLIES.  [PaRT   I. 

poration  for  a  voter,  or  to  pay  for  his  admission  or  enrolment.^  In 
this  country,  the  payment  of  a  tax  assessed  upon  an  individual, 
with  a  view  to  enable  him  to  become  a  voter,  seems  equivalent  to 
advancing  money  to  purchase  the  freedom  of  a  corporation  for  the 
same  purpose,  and  would  doubtless  be  considered  to  have  the  same 
effect.  So,  a  wager  between  two  voters,  or  between  a  voter  and 
another  person,  on  the  event  of  an  election,  amounts  to  bribery .^ 
In  all  these  cases,  in  order  to  constitute  bribery,  it  is,  of  course, 
necessary  that  the  other  ingredients  of  that  offence  should  exist. 

189.  In  England,  before  the  enactment  of  any  of  the  statutes  on 
the  subject,  bribery  was  not  only  a  high  misdemeanor,  at  common 
law,  punishable  by  indictment,  or  information ;  ^  but  when  prac- 
tised at  elections  of  members  of  parliament,  was  also  a  breach  of 
parliamentary  privilege  and  punishable  accordingly ;  ^  and  it  is  an 
offence  of  so  heinous  a  character,  and  so  utterly  subversive  of  the 
freedom  of  election,  that,  when  proved  to  have  been  practised, 
though  in  one  instance  only,  and  though  a  majority  of  unbribed 
voters  remain,  the  election  will  be  absolutely  void.'^  This  severity 
is  justified  on  the  ground,  that,  in  a  country  where  bribery  is  so 
common  as  to  form  the  subject  of  investigation  in  a  large  propor- 
tion of  election  cases,  it  is  absolutely  essential  to  the  preservation 
of  the  freedom  of  election.^ 

190.  Whether  the  same  effect  would  be  held  to  follow  in  this 
country  may  admit  of  some  question,  or  perhaps  depend  upon  the 
degree  of  guilt  attached  in  the  several  States  to  the  offence  of  brib- 
ery. This  offence,  though  much  less  common  here  than  in  Eng- 
land, is  nevertheless  considered  as  so  subversive  of  the  freedom  of 
election,  and  so  disgraceful  to  the  parties  concerned,  that  it  is  made 
an  express  ground  of  disqualification  in  the  constitutions  of  several 
of  the  States.  In  all  such  States,  therefore,  whatever  may  be  thie 
case  in  others,  there  can  be  no  doubt,  that  an  election  tainted  with 
bribery  ought  to  be  held  void,  without  reference  to  the  number  of 
votes  thereby  affected. 

191.  The  effect  of  bribery,  in  working  a  disqualification,  is  differ- 
ently •Btated  in  the  several  constitutions.     By  those  of  Indiana,  and 

1  Leicester,  Comm.  Jour.  XV.  136 ;  Baynturn  ^  Rex  v.  Pitt,  Burrow's  Reports,  1838 ;  Wm. 

V.  Cottle,  Manning  &  Ryland,  I.  265.    But  see  Blackstone,  I.  382. 

also   Worcester,   Corbet  &  Daniel,  173,  and  *  Bletchinghy,  Glanville,  41. 

Bristol,  Douglass,  I.  243.  ^  St.  Ives,  Douglass,  IT.  389;  Coventry,  ?eck- 

*  See  Allen  v.  Hearne,  Term  Reports,  I.  56;  well,  I.  97;  Male  on  Elections,  315. 

Jones  v.  Randnll,  Cowper's  Reports,  39;  Anon-  «  Male  on  Elections.  345. 
ymous,  Lofft,  552,  and  Rogers  on  Elections, 
268,  note  (a). 


Chap.  VI.]        controverted  returns  and  elections.  71 

Tennessee,  the  act  alone  disqualifies  ;  by  those  of  Kentucky,  Lou- 
isiana, Mississippi,  Alabama,  Georgia,  Rhode  Island,  Arkansas, 
Texas,  California,  and  Missouri,  a  conviction  is  also  requisite ; 
while,  by  the  constitutions  of  Massachusetts  and  New  Hampshire, 
a  conviction  is  not  only  necessary,  but  it  must  be  in  a  due  course 
of  law.  In  Tennessee,  the  disqualification  is  for  six  years ;  in  the 
States  secondly  above  mentioned,  including  Indiana,  the  disqualifi- 
cation is  limited  to  the  term  of  office  for  which  the  election  is  made  ; 
and  in  the  remaining  States  it  is  perpetual.  In  all  these  States  an 
offer  to  bribe  is  as  much  a  disqualification  as  bribery  itself.  In  the 
constitutions  of  New  Jersey,  New  York,  Maryland,  Mississippi, 
Missouri,  Arkansas,  Texas,  and  California,  authority  is  expressly 
given  to,  or  required  to  be  exercised  by,  the  legislative  power  to 
exclude  from  office  aU  persons  guilty  of  bribery,  or  crimes  of  a  simi- 
lar character. 

192.  The  right  of  a  legislative  assembly,  in  those  States  w^here  a 
conviction  is  necessary  to  disqualify,  to  set  aside  an  election  for 
bribery,  where  the  majority  is  not  thereby  affected,  before  a  convic- 
tion at  law  has  taken  place,  seems  to  be  clear ;  for,  in  the  first  place, 
the  trial  of  a  controverted  election  is  a  judicial  proceeding ;  second, 
annulling  an  election  for  bribery,  in  the  case  supposed,  is  analogous 
to  expulsion,  which  is  the  peculiar  and  appropriate  punishment  for 
bribery,  by  the  common  law  of  parliament ;  and,  third,  it  might 
otherwise  happen,  that,  by  reason  of  there  being  no  judicial  courts 
in  session,  at  the  proper  time,  the  constitutional  provision  would 
become  entirely  nugatory,  or  partially  ineffectual. 

Section  V.  —  Of  Elections  as  affected  by  the  Qualifications 
AND  Conduct  op  the  Returning  Officers. 

193.  In  England,  where,  as  will  be  recollected,  elections  take 
place  in  virtue  of  precepts,  it  sometimes  happens,  that  persons  who 
are  not  the  proper  returning  officers  get  possession  of  a  precept,  by 
some  indirect  means  or  otherwise,  and  hold  an  election.  In  such 
cases,  if  an  election  is  fairly  made,  the  proceedings  will  be  con- 
firmed ;  but  if  the  usurpation  is  wilful,  though  the  election  wiU  not 
thereby  be  invaUdated,  the  officers  will  be  subject  to  censure  and 
punishment  by  the  house.^ 

194.  In  this  country,  —  precepts  not  being  ordinarily  the  mode 
of  proceeding,  —  the  rule  appears  to  be  only  so  far  adopted,  that 

1  Male  on  Elections,  84,  85. 


72  LEGISLATIVE  ASSEMBLIES.  [PaRT    L 

persons  assuming  to  be  returning  officers  and  acting  as  such  are 
presumed  to  be  legally  elected  or  appointed,  and  to  be  duly  qualified 
for  the  discharge  of  their  duties,  until  the  contrary  is  made  to 
appear ;  in  which  case,  their  proceedings  in  reference  to  elections 
will  be  set  aside.  Where  an  election  takes  place,  in  pursuance  of 
a  precept,  the  EngUsh  rule  seems  applicable. 

195.  It  is  the  invariable  practice,  therefore,  with  us,  to  allow  the 
authority  and  qualifications  of  returning  officers  to  be  inquired  into ; 
and,  if  it  appears,  that  persons  assuming  to  act  as  such  are  not  duly 
elected,  as,  if,  in  Massachusetts,  where  the  selectmen  are  returning 
officers,  an  election  is  conducted  by  persons  who  are  not  duly 
elected  selectmen ;  ^  or,  if,  in  Georgia,  where  three  magistrates  are 
required  to  preside  at  elections,  an  election  is  conducted  by  three 
persons,  one  of  whom  only  is  a  magistrate ;  ^  the  proceedings  of  the 
persons  thus  assuming  to  act  wUl  be  void. 

196.  So,  if  returning  officers,  being  duly  elected,  refuse  or  neg- 
lect to  take  the  oaths  required  by  law,  to  quafify  them  to  act  in  that 
capacity,  their  proceedings  will  be  void ;  ^  but  where  the  law  re- 
quu-ed  that  returning  officers,  before  entering  on  the  execution  of 
the  duties  of  their  office,  should  take  an  oath  faithfully  to  discharge 
the  duties  of  the  same,  respecting  elections  and  returns,  and  they 
were  sworn  accordingly,  after  issuing  the  warrant  calling  the  meet- 
ing, and  before  proceeding  to  the  election,  the  requisitions  of  the 
law  were  deemed  to  be  substantially  complied  with.^ 

197.  If  returning  officers  act  in  so  illegal  or  arbitrary  a  manner, 
as  to  injure  the  freedom  of  election,  the  whole  proceedings  wiU  be 
void.  Thus,  in  Massachusetts,  where  members  of  the  house  of 
representatives  are  chosen  by  the  towns  in  town  meeting,  if  the 
selectmen,  who  preside  and  are  the  returning  officers,  refuse  to  put 
proper  motions,  as,  for  instance,  as  to  the  number  of  representatives 
to  be  chosen,  or  for  an  adjournment;  or  refuse  to  allow  the  discus- 
sion of  any  proper  question;  or  close  the  poUs  without  giving 
reasonable  notice  beforehand ;  an  election  effected  under  such  cir- 
cumstances wiU  be  void.^ 

198.  An  election  may  be  controverted,  on  the  ground  of  the 

1  Adams,  Gushing,   S.   &   J.,   13;  Harwich,      Same,  703;  Eliot,  Gushing,  S.  &  J.,  166.     See 
Same,  38;    Troy,  Same,  66;    Chester,  Same,      Fbiurw,  Gushing,  S.  &  J.,  302. 

238.  *  Eliot,  Gushing,  S.  &  J.,  166. 

2  Jackson  v.  Wayne,  Clarke  &  Hall,  47.  ^  Rehoboth,  Gushing,  S.  &  J.,  127 ;  Roxbury, 
8  McFarland  v.  Purviance,  Glarke  &  Hall,      Same,  157;  Nantucket,  Same,  180;  Nantucket, 

131;    McFarland   v.    Cidpepper,   Same,   221;      Sharon,     Same,     195;     Boston,    Same,    221; 
Eaetm,  v.  Scott,  Same,  272 ;  Draper  v.  Johnston,      Charlcstown,   Same,    226 ;    Gloucester,   Same, 

207. 


Chap.  VL]      controverted  returns  and  elections.  73 

illegal  reception  or  illegal  rejection  of  votes  by  the  returning  ofTicers ; 
and,  in  such  a  case,  if  it  is  proved,  that  votes  sufficient  to  change 
the  majority  have  been  iUegally  received,  or  illegally  rejected,  the 
election  will  be  set  aside,  and  the  candidate  having  the  majority 
will  be  admitted ;  ^  but  neither  the  reception  of  illegal  nor  the  rejec- 
tion of  legal  votes  will  have  this  effect,  unless  the  majority  is  thereby 
affected.2 

199.  When  the  voting  is  by  ballot,  a  voter  is  not  compellable  to 
disclose  the  character  of  his  vote,  or  to  testify  for  whom  he  voted, 
on  a  given  occasion.  "When  it  becomes  necessary,  therefore,  on  the 
trial  of  a  controverted  election  to  show  for  whom  votes  by  ballot 
were  given,  and  such  a  voter  refuses  to  appear,  or  appearing  refuses 
to  disclose  for  whom  he  voted,  evidence  is  admissible  "  of  the 
general  reputation  of  the  political  character  of  the  voter,  and  as  to 
the  party  to  which  he  belonged  at  the  time  of  the  election."  ^ 

200.  Attempts  have  been  sometimes  made  by  rival  candidates 
to  get  rid  of  troublesome  questions,  at  an  election,  by  entering  into 
an  agreement  beforehand,  touching  the  right  of  certain  classes  of 
persons  to  vote  ;  but,  it  is  settled,  that  such  an  agreement  cannot 
have  the  effect  either  to  diminish  or  enlarge  the  elective  franchise, 
as  established  by  law.* 

201.  The  duties  of  returning  officers  in  conducting  elections 
being  prescribed  by  the  statute  laws  of  the  several  States,  it  is 
obviously  impossible  to  present  any  thing  more  than  the  general 
rule,  as  to  how  far  a  neglect  or  misconception  of  duty  on  their  part 
will  affect  the  validity  of  an  election  ;  and,  herein,  the  leading 
principle,  sanctioned  both  by  law  and  common  sense,  undoubtedly 
is  this,  that  where  the  provisions  of  law,  whatever  they  may  be, 
are  imperative  or  peremptory,  any  neglect  of  returning  officers  to 
observe  them  wnR  render  their  proceedings  void ;  but  that  where 
the  law  is  merely  directory,  no  neglect,  or  mistake,  or  even 
improper  conduct  or  irregularity  on  their  part,  will  be  fatal,  though 
frequently  made  punishable  by  law,  if  in  other  respects,  there  has 
been  a  substantial  and  good  election.^  Provisions  of  law,  which 
are  introduced  only  as  affirmative  propositions,  are  commonly, 
unless  essential  in  their  character,  merely  directory  ;  but  if  accom- 

1  Heywood  on  County  Elections,  500 ;  West-  «  Cong.  Globe,  XVI.  App.  456. 

era,  Cusliinfr,  S.  &  J.,  144;   Tynngliam,  Same,  <  Glanville,    108;    Porterjield    v.    ^f'Coy, 

266;   Charlemont,  Same,  261;  Dighton,  Same,  Clarke  &  Hall,  269;  Drttperv.  Johnston,  Szxae, 

175;    Slirewsbuni,   Same,   275;    Sheffield  and  706. 

Mount  Washtngiun,   Same,  46;  Case  of  John  '  Heywood  on  County  Elections,  511 ;  Col- 

Clapton,  Clarke  &  Hall,  101.  den  v.  Sharpe,  Clarke  &"Hdl,  369. 

"  Case  of  Thomas  LewU,  Clarke  &  Hall,  128. 


74  LEGISLATIVE    ASSEMBLIES.  [PaKT   L 

panied  also  by  negative  words,   oj*  their  equivalent,  they  are,  of 
course,  without  regard  to  their  character,  always  peremptory. 

202.  In  the  application  of  this  principle,  much  embarrassment 
will  be  prevented,  by  keeping  in  view  these  two  considerations, 
first,  that  it  is  the  language  rather  than  the  nature  of  a  statutory 
provision,  which  makes  it  imperative  or  directory;  and,  second 
that  whether  a  neglect  of  the  requisitions  of  a  directory  statute  will 
be  fatal  or  not  to  the  proceedings  does  not  depend  so  much  upon 
the  nature  of  the  neglect,  as  upon  its  influence  in  producing  the 
result  of  the  election.  Irregularities  in  the  proceedings  of  returning 
officers,  though  not  sufficient  of  themselves  to  authorize  a  pre- 
sumption of  fraud  or  corruption,  are  nevertheless  always  looked 
upon  as  strong  corroborative  circumstances. 

203.  The  following  cases  are  selected  from  a  much  greater 
number  as  examples  of  irregularities  in  the  conduct  of  returning 
officers,  in  the  observance  of  the  requisitions  of  statutes,  which 
have  been  held  to  be  merely  directory  statutes,  and  which  have 
been  considered  as  insufficient  to  invalidate  elections,  namely: 
where  the  ballot  box  was  not  locked,  as  required  by  law,  but  was 
only  tied  with  tape,  and  was  also  placed  in  the  custody  of  a  person 
not  authorized  to  have  charge  of  it ;  ^  where  instead  of  "  a  box 
locked  or  otherwise  well  secured,"  a  gourd  ".  carefuUy  stopped  and 
tied  up  in  a  handkerchief"  was  used;^  where  there  was  an  omis- 
sion to  give  the  notices  required  by  law  to  two  inconsiderable 
places  within  an  election  district ;  ^  where  the  returning  officers  did 
not  meet  for  the  purpose  of  making  their  return  until  after  the  time 
appointed  by  law  ;  *  where  the  poll  clerks  appointed  by  the  sheriff 
were  not  sworn  until  after  the  election,^  or  were  not  sworn  at 
aU ;  ^  where  the  number  of  votes,  being  required  by  law  to  be  set 
down  in  writing,  was  set  down  in  figures ;  ^  where  the  return  of 
votes  was  unsealed,  instead  of  being  sealed  up,  as  required  by 
law ;  8  where  the  votes  were  returned  after  the  time  prescribed  by 
law ;  9  where  the  opening  of  the  meeting  was  delayed  for  two 
hours  beyond  the  time  fixed ;  ^"^  where  the  officers  presiding  at  an 
election,  in  the  belief  that  illegal  votes  had  been  received,  stopped 

1  Van  Rensselaer  v.   Van  Allen,   Clarke  &  ^  Porterfeldv.  McCoy,  Clarke  &  Hall,  267. 

HaU^  73.  8  CokJiester,  Peckwell,  L  503,  506,  507. 

»  Arnold  v.  Lea,  Clarke  &  Hall,  601.  ^  jPastan  v.  Scott,  Clarke  &  Hall,  272. 

«  Lyon  V.  Smith,  Clarke  &  Hall,  101 ;  Orkney  «  Mallary  v.  Merrill,  Clarke  &  Hall,  328. 

^  Shetland,  Fraser,  L  369;  but  see  Seaford,  ^  Draper  v.  Johnston,   Clarke  &   Hall,  708; 
Luders,  III.  3.                                                          Spaulding  v.  Mead,  Same,  167. 

♦  Case  of  David  Bard,  Clarke  &  Hall,  116.  ^  Standish,  Cushing,  S.  &  J.,  82. 


Chap.  VI.]      controverted  returns  and  elections.  75 

the  balloting  and  commenced  anew ;  ^  where  the  warrant,  calling 
the  meeting  for  an  election  did  not  specify  the  time  when  the  poll 
would  be  opened ;  ^  where  the  poU  was  not  kept  open  each  day 
the  number  of  hours  required  by  law.*^  In  all  these  cases,  there 
being  a  substantial  and  good  election  notwithstanding  the  irregu- 
larities complained  of,  the  proceedings  were  not  invalidated. 

204.  The  foregoing  principles,  though  established  with  reference 
more  particularly  to  municipal  corporations,  each  of  which  is  a 
constituency  by  itself,  are  equally  applicable  to  two  or  more  such 
corporations  united  together  into  one  constituency  or  election  dis- 
trict;  but,  if  the  votes  of  anyone  or  more  of  the  corporations  so 
united  are  set  aside  for  any  cause  whatever,  the  election  will  not 
be  avoided,  unless  the  majority  of  votes  in  the  whole  district  is 
thereby  changed."* 

205.  An  election  being  a  choice  made  by  the  requisite  number 
of  electors  exercising  their  right  of  suffrage  ;^  it  is  an  established 
rule,  that,  when  an  election  has  been  effected,  the  right  of  the  elec- 
tors is  exhausted,  and  they  have  no  further  power  in  the  matter, 
either  to  revoke  the  election,  or  to  make  a  further  choice.  '  Thus,  it 
has  been  held,  in  Massachusetts,  that  where  a  valid  election  had 
been  made,  it  could  not  be  rendered  void  by  a  subsequent  recon- 
sideration of  the  choice;^  and,  on  the  same  principle,  that  an 
election  of  a  member  at  one  meeting  could  not  be  superseded  and 
rendered  void,  by  the  election  of  another  person,  at  a  subsequent 
meeting." 

206.  It  is  also  an  established  rule,  that,  if  the  proceedings  of 
electors,  at  a  meeting  for  an  election,  are  in  fact  void,  and  do  not 
constitute  a  choice,  they  cannot  be  rendered  valid,  or  turned  into 
an  election,  by  any  subsequent  proceeding.  Thus,  it  has  been 
held,  that  where  an  election  was  in  fact  illegal  and  void,  it  could 
not  be  rendered  valid,  by  a  refusal  of  the  electors,  acting  upon  the 
supposition  of  its  validity,  to  reconsider  the  supposed  choice ;  ^  so, 
where  an  election  was  illegal,  by  reason  of  its  having  been  made 
after  a  vote  of  the  town  not  to  choose,  it  could  not  be  made  a  good 
election,  by  a  reconsideration  of  that  vote.^ 

1  Chatham,  Gushing,  S.  &  J.,  423.  Arnold  v.  Lea,  Same,  601 ;  Draper  v.  Johnston 

a  West  BnyUton,  Gushing,  S.  &  J.,  394.  Same,  703. 

*  Colchester,  Peckwell,  I.   506 ;     Limerick,        ^  Male  on  Elections,  100. 
Perry  &   Knapp,  356;  Gockbume  &  Rowe,        •  Pardon,  Gushing,  S.&  J.,  20. 
288;   Wanoick,  Gushing,  S.  &  J.,  401.  '  Dresden,  Gushing,  S.  &  J.,  151. 

*  McFarlandv.  Purviance,  Clarke  &  Hall,        *  CTes^er^eW,  Gushing,  S.  &  J.,  7. 

181;    McFarland  v.    Culpepper,   Same,  221;        »  Winslow,   Gushmg,   S.  &  J.,  201;    SooOir 

bridge.  Same,  215. 


76  LEGISLATIVE    ASSEMBLIES.  [PaRT   1 

207.  bo,  if  the  returning  officers,  or  judges  of  the  election,  upon 
recei\dng,  examining,  and  counting  the  votes,  decide  that  there  is 
no  choice,  and  upon  that  decision,  a  second  balloting  takes  place, 
at  which  an  election  is  effected,  and  a  ret;iirn  is  made  accordingly ; 
if  there  was  in  fact  an  election  on  the  first  balloting,  the  election  on 
the  second  will  be  set  aside,  and  the  person  first  elected  will  be 
admitted.  If,  in  such  a  case,  the  returning  officers  discover  their 
mistake,  or  become  convinced  of  their  error,  before  making  a  return, 
they  will  be  justified  in  returning  the  person  really  elected,  in  the 
first  instance. 

208.  If  an  election  is  made  on  condition,  as  where  a  certain  per- 
son was  elected  a  burgess,  provided  certain  other  persons  should 
be  chosen  knights  of  the  shire,  the  condition  is  void,  as  inconsist- 
ent with  the  freedom  of  election.^ 

209.  Where  a  constituency  consists  of  several  municipal  cor- 
porations or  districts,  the  officers  of  which  receive  the  votes  and 
make  returns  of  them  to  the  returning  officers ;  and,  upon  their 
decision,  that  there  is  no  choice,  a  new  balloting  takes  place,  at 
which  an  election  is  made,  the  latter  will  be  set  aside,  if  the 
decision  of  the  returning  officers  upon  the  former  was  incorrect.^ 

210.  The  same  general  rules,  by  which  courts  of  law  are  gov- 
erned, in  regard  to  the  evidence  in  proceedings  before  them,  prevail 
also  in  the  investigation  of  cases  of  controverted  elections ;  ^  but, 
inasmuch  as  a  legislative  assembly,  touching  things  appertaining  to 
its  cognizance,  is  "  as  well  a  council  of  state  and  court  of  equity 
and  discretion,  as  a  court  of  law  and  justice,"  ^  the  legal  rules  of 
evidence  are  generally  applied  by  election  committees,  more  by 
analogy  and  according  to  their  spirit,  than  with  the  technical  strict- 
ness of  the  ordinary  judicial  tribunals. 

211.  The  rule  stated  in  the  preceding  paragraph  relates  of 
course  only  to  investigations  by  the  testimony  of  witnesses  or 
other  evidence  before  the  assembly  itself  or  its  committees ;  but, 
where  the  testimony  is  contained  in  depositions,  they  ought  to  be 
taken  according  to  the  law  of  the  State  where  they  are  taken ;  and 
where  the  trial  is  before  a  committee,  they  may  either  be  laid 
directly  before  the  committee,  or  through  the  intervention  of  the 
assembly.  The  former  is  usually  the  case  when  depositions  are 
taken  in  pursuance  of  authority  by  or  with  the  sanction  of  the 
committee.     Where  they  are  taken  in  pursuance  of  a  law  for  that 

1  Beeralston,  Comm.  Jour.  II.  14.  3  Rogers  on  Election  Committees,  89. 

«  Washburn  v.  Rlpky,  Clarke  &  Hall,  679.  *  GlanviUe,  27, 118, 119. 


Chap.  VI.]      controverted  returns  and  elections.  77 

purpose,  the  provisions  thereof  must  regularly  be  pursued-  The 
taking  of  depositions,  in  cases  of  controverted  elections,  in  the 
house  of  representatives  in  congress,  is  regulated  by  statute.^ 

212.  Where  a  case  is  tried,  in  the  usual  manner,  between  a 
petitioner  claiming  the  seat,  and  the  sitting  member,  the  parties 
carry  on  and  conduct  the  trial,  but  neither  of  them  recovers  any 
costs  against  the  other.  The  sitting  member,  whether  he  retains  his 
seat,  in  virtue  of  his  election,  or  is  deprived  of  it,  by  the  petitioner, 
is  entitled  to  his  pay  as  a  member,  at  least,  during  the  time  he 
occupied  a  seat  as  such.  The  petitioner,  if  the  seat  is  awarded  to 
him,  will  be  entitled  to  his  pay  as  a  member  for  the  whole  term ; 
while  if  he  is  unsuccessful,  it  appears  to  be  the  custom  of  the  house 
of  representatives  in  congress  to  allow  the  petitioner  his  pay  as  a 
member,  or,  at  aU  events,  to  relieve  him  from  the  legal  expenses  of 
the  controversy.  Where  the  investigation  into  the  merits  of  an 
election,  or  the  right  of  a  member  to  his  seat,  is  set  on  foot  by  the 
assembly  itself  and  not  at  the  solicitation  of  any  claimant  of  the 
seat,  the  assembly  either  defrays  the  expense  out  of  its  contingent 
fund,  if  it  has  one,  or  takes  measures  to  obtain  the  passage  of  a  law 
for  that  purpose. 

213.  If  a  petition  against  an  election  or  return,  (where  the  sub- 
ject is  not  otherwise  regulated  J)y  law,)  is  presented  at  so  late  a 
period  of  the  session,  that  an  investigation  cannot  conveniently  be 
had  thereon  ;'^  or,  if  a  petitioner  does  not,  within  a  reasonable  time, 
bring  forward  the  evidence  in  support  of  his  allegations  j^  no  further 
proceedings  will,  in  general,  be  allowed  to  take  place ;  though,  as 
"  the  commonwealth  hath  an  interest  in  the  election  and  service  of 
every  particular  member,"  and  "  the  parties  may  desert  their  com- 
plaint by  some  imderhand  combination,"  the  election  or  return  in 
question  may  nevertheless  be  examined.* 

1  Act  of  Feb.  19,  1861.  »  Cabell  v.  Randolph,  Clarke  &  HaU,  134; 

2  (Suiton,  Cusbing,  S.  &  J.,  80  Lyon  v.  Bates,  Same,  372. 

*  GlanviUe,  58, 118. 


LAW  AND  PRACTICE 


ov 


LEGISLATIVE    ASSEMBLIES. 


PART   SECOND. 

OF  THE  CONSTITUTION  OF  A  LEGISLATIVE  ASSEMBLY. 


(70) 


LAW  AND  PRACTICE 


OP 


LEGISLATIVE    ASSEMBLIES. 


PART    SECOND. 

OF  THE   CONSTITUTION    OF  A   LEGISLATIVE   ASSEMBLY. 


214.  Having  explained  in  the  preceding  part  what  relates 
to  the  election  of  the  members,  the  next  thing  in  order  is  to 
treat  of  the  constitution,  of  a  legislative  assembly.  The  sense,  in 
which  this  term  is  intended  to  be  used,  will  be  apparent  from  a 
statement  of  the  several  topics,  embraced  under  it,  which  it  is  pro- 
posed now  to  consider,  namely:  —  first,  of  the  assembling  and 
qualifying  of  the  members,  and  of  the  organization;  second,  of  the 
officers ;  third,  of  the  place  and  manner  of  sitting,  and  of  the 
formalities  of  proceeding  in  the  transaction  of  business ;  fourth,  of 
vacancies  occurring  and  elections  to  fill  them ;  and,  fifth,  of  the 
sitting  of  an  assembly,  and  of  adjournment,  prorogation,  assem- 
bling by  proclamation,  and  dissolution. 

(81) 


LEGISLATIVE   ASSEMBLIES.  [PaRT    II. 


CHAPTER    FIRST. 

OF  THE  ASSEaiBLING,   QUALIFYING,  AND   ORGANIZING  OF  A 
LEGISLATIVE   ASSEMBLY. 


Section  I.    Preliminary   Proceedings   in   the   House   op 

Commons  in  England. 

215.  The  lesdslative  assemblies  of  the  United  States  being  aU 
constituted  upon  the  model  of  the  two  houses  of  parliament,  and 
especially  of  the  house  of  commons,  it  will  be  useful  to  give  some 
account  of  the  assembling  together  and  organization  of  that  body 
for  the  transaction  of  business. 

216.  The  time  and  place  for  the  holding  of  a  parliament  being 
fixed  by  the  king  in  council,  and  inserted  in  the  warrant  directing 
the  issuing  of  the  writs  of  election,  the  members  of  the  house  of 
commons  returned  in  pursuance  thereof,  as  already  described, 
attend  on  the  day  appointed  for  the  meeting,  in  one  of  the  rooms 
appropriated  to  the  use  of  the  clerk  of  the  house,  in  the  place 
where  the  parliament  is  to  be  held.  They  are  there  met  by  the 
clerk  of  the  house,  accompanied  by  the  clerk  of  the  crown  in  chan- 
cery ;  by  whom  the  clerk  of  the  house  is  then  furnished  Avith  a 
book  containing  a  duplicate  record  of  the  names  of  the  members 
returned.  The  clerk  of  the  house  proceeds  to  call  the  names,  and 
the  members  present  answer  as  they  are  called,  giving  at  the  same 
time  the  names  of  the  places  for  which  they  respectively  serve.^ 

217.  It  was  formerly  necessary,  at  this  point  of  the  proceedings, 
that  the  members  upon  being  called  and  answering  to  their  names, 
should  take  the  oaths  of  abjuration,  allegiance,  and  supremacy; 
without  which  they  were  prohibited  under  a  severe  penalty  from 
taking  seats  in  the  house.  They  were  also  required  to  take  the 
same  oaths  after  the  speaker  had  been  chosen.  But  the  taking  of 
these  oaths,  before  entering  the  house,  has  been  dispensed  with  by 
a  recent  statute,^  and  the  members  now  proceed  at  once  to  their 

•  Lex  Parliamentaria,  263.     The  clerk  of      appointed  by  letters  patent  from  the  king,  and 
the  house  is  not  elected  by  the  house,  but  is      holds  his  office  for  life. 

2  5  &  6  W.  4,  c.  36. 


Chap.  L]         assembling,  QUALiFYmo,  organization.  83 

seats,  upon   being   called   by   the   clerk   and   answering   to   theii 
names. 

218.  The  statute,  providing  for  the  taking  of  the  oaths  before 
entering  the  house,  was  required,  on  the  ground,  that  it  was  neces- 
sary in  order  to  prevent  persons  who  were  not  duly  returned  from 
parlicipating  in  the  choice  of  a  speaker.  The  provision  wag 
repealed,  on  the  ground,  that  a  person,  who  would  enter  the  house 
and  give  his  vote  for  speaker,  without  being  returned,  would  not  be 
deterred  froni  doing  so  by  the  taking  of  these  oaths. 

219.  When  the  members  are  thus  assembled  in  the  house,  they 
receive  a  summons  to  attend  immediately  in  the  house  of  lords ; 
to  which  they  proceed  in  a  body,  and  are  there  informed  by  the 
lord  chancellor,  that,  as  soon  as  the  members  of  the  tw^o  houses 
shall  be  sworn,  the  sovereign  will  declare  the  causes  of  calling  the 
parliament ;  and,  in-the  mean  time,  as  it  is  necessary  that  a  speaker 
should  be  chosen,  he  directs  them  in  the  name  of  the  king,  to  return 
to  their  house,  and  there  proceed  to  the  appointment  of  some 
proper  person  to  be  their  speaker,  whom  they  are  to  present  at  a 
time  named,  in  the  house  of  lords,  for  the  royal  approbation. 

220.  The  commons  then  return  to  their  house,  and  proceed  at  once 
to  the  election  of  a  speaker,  which  is  conducted  in  the  following 
manner:  —  Some  one  of  the  members,  addressing  himself  to  the  clerk 
at  the  table,  who  thereupon  responds  to  the  member  by  rising 
and  pointing  to  him  with  his  finger,  reminds  the  house  of  the 
king's  command  to  elect  a  speaker,  and,  in  a  short  complimentary 
speech,  proposes  a  candidate  for  that  office.  If  this  nondnation  is 
seconded,  as  it  commonly  is  in  a  similar  speech,  and  happens  not 
to  be  opposed  by  any  other  candidate's  being  brought  forward,  the 
member  thus  selected  is  at  once  called  by  the  house  to  the  chair, 
and  is  conducted  there  and  placed  in  it  by  his  proposer  and 
seconder,  without  any  other  or  more  formal  vote  of  the  house. 

221.  If  the  nomination  is  opposed  by  that  of  some  other  candi- 
date, both  the  candidates  address  themselves  to  the  house,  and  a 
debate  ensues,  in  which  the  merits  and  claims  of  the  two  are  dis- 
cussed by  their  respective  friends ;  and  a  vote  of  the  house  is  put 
on  the  question,  that  the  member  first  proposed  do  take  the  chair 
as  speaker.  If  this  question  should  be  decided  in  the  negative,  the 
opposing  candidate  is  usually  called  to  the  chair,  in  the  manner 
already  mentioned,  without  a  question  being  taken  on  liis  nomina- 
tion. 

222.  The  speaker  elect,  on  being  conducted  to  the  chair,  pauses 
for  a  moment  on  the  upper  step,  to  make  his  acknowledgments  to 


84  LEGISLATIVE  ASSEMBLIES.  [PaRT    IL 

the  house  for  the  honor  conferred  on  him,  and  then  sits  down  in  the 
chair.  The  mace,  which  is  commonly  described  as  a  club  of  silver, 
used  as  an  emblem  of  the  authority  of  the  house,  which  has  thus  far 
in  the  proceedings  remained  under  the  table,  is  now  placed  upon  it 
by  the  sergeant  at  arms,  in  token  that  the  house  is  regularly  con- 
stituted. The  speaker  elect  is  then  congratulated  by  some  mem- 
ber ;  and  the  house  adjourns  to  the  day  appointed  for  presenting 
the  speaker  for  the  royal  approbation. 

223.  It  was  anciently  the  practice  for  the  speaker  elect,  on  being 
called  to  the  chau-,  and  before  taking  it,  to  disable  himself,  that  is,  to 
address  the  house  with  a  great  show  of  modesty  and  diffidence, 
deprecating  their  choice  of  himself,  and  beseeching  them  to  recall 
it,  and  to  proceed  to  a  new  one.  Mr.  Sargeant  Yelverton,  after- 
wards chief  justice  of  the  common  pleas,  in  the  year  1597,  disabled 
himself  in  terms,  which  were  probably  not  uncommon  on  such 
occasions.  The  following  extract  will  afford  some  idea  of  the  per- 
son and  condition  of  the  learned  sergeant,  as  well  as  of  the  charac- 
teristics of  a  disabling  speech :  —  "  Whence  your  unexpected  choice 
of  me  to  be  your  mouth  or  speaker,  should  proceed,  I  am  utterly 
ignorant.  If  from  my  merits,  strange  it  were,  that  so  few  deserts 
should  purchase  suddenly  so  great  an  honor.  Nor  from  my  ability 
doth  this  your  choice  proceed ;  for  well  known  it  is  to  a  great  num- 
ber in  this  place  now  assembled,  that  my  estate  is  nothing  corre- 
spondent for  the  maintenance  of  this  dignity.  For  my  father  dying 
left  me  a  younger  brother,  and  nothing  to  me  but  my  bare  annuity. 
Then  growing  to  man's  estate,  and  some  small  practice  of  the  law, 
I  took  a  wife  by  whom  I  have  had  many  children,  the  keeping  of 
us  all  being  a  great  impoverishing  to  my  estate,  and  the  daily  living 
of  us  all  nothing  but  my  daily  industry.  Neither  from  my  person 
or  nature  doth  this  choice  arise ;  for  he  that  suppheth  this  place 
ought  to  be  a  man  big  and  comely,  stately  and  weUspoken,  his 
voice  great,  his  carriage  majestical,  his  nature  haughty,  and  his 
purse  plentiful  and  heavy ;  but  contrarily,  the  stature  of  my  body 
is  small,  myself  not  so  wellspoken,  my  voice  low,  my  carriage  law- 
yer-like and  of  the  common  fashion,  my  nature  soft  and  bashful, 
my  purse  thin,  Hght,  and  never  yet  plentiful.  Wherefore  I  now  see 
the  only  cause  of  this  choice  is  a  gracious  and  favorable  censure  of 
your  good  and  undeserved  opinions  of  me."  ^ 

224.  On  the  day  appointed,  the  commons  are  again  summoned 
to  attend  the  king  in  the  house  of  lords,  and,  going  up  accordingly. 

1  D'Ewes,  549. 


Chap.  I.]        assembling,  qualifying,  organization.  ^^5 

the  speaker  is  presented  to  the  king  by  two  of  the  member?.  The 
speaker  then  informs  his  majesty,  that  the  choice  of  the  commons 
has  fallen  on  him,  that  he  feels  the  diificulties  of  Ids  high  and 
arduous  otFice,  and  that  if  it  should  be  his  majesty's  pleasure  to 
disapprove  of  the  choice,  the  commons  will  at  once  select  some 
other  member,  better  qualified  to  fill  the  station.  The  practice 
anciently  was,  for  the  speaker  "to  disable  himself  again  to  the  king, 
and,  in  most  humble  manner,  to  entreat  the  king  to  command  them 
to  choose  a  more  sufficient  man."  The  only  instance  of  the  royal 
approbation  being  refused  was  in  the  case  of  Sir  Edward  Seymour 
in  1678.  Sir  John  Topham,  who  was  chosen  speaker  in  1450,  dis- 
abled and  excused  himself  according  to  the  fashion  of  the  times, 
and  his  excuse  being  admitted  by  the  king,  another  speaker  was 
chosen  by  the  commons  in  his  place.  Sir  Edward  Seymour,  who 
knew  that  it  had  been  determined  to  take  advantage  of  his  excuse, 
if  he  offered  any,  in  the  same  manner,  purposely  avoided  making 
one,  so  that  the  king  was  obliged  to  withhold  his  approbation  in 
direct  terms. 

225.  The  royal  approbation  being  signified,  the  speaker  then 
prays,  on  behalf  of  the  commons,  that  they  may  be  allowed  their 
ancient  privileges,  namely :  "  that  their  persons,  their  estates,  and 
servants,  may  be  free  from  aU  an-ests  and  molestations ;  that  they 
may  enjoy  liberty  of  speech  in  ail  their  debates ;  that  they  may 
have  access  to  his  majesty's  royal  person,  whenever  occasion  shall 
require  ;  and  that  aU  their  proceedings  may  receive  from  his  majesty 
the  most  favorable  construction."  ^  These  privileges  being  accorded 
to  the  commons,  they  return  to  their  house,  and  the  speaker  makes 
a  report  of  what  has  passed  in  the  lords. 

226.  The  speaker  on  the  return  of  the  commons  to  their  house 
then  calls  the  attention  of  the  members  to  the  oaths  which  they  are 
required  by  law  to  take,  before  proceeding  to  any  other  business 
than  the  choice  of  speaker.  The  oaths  are  those  of  allegiance, 
abjuration,  and  supremacy,  which  are  first  taken  by  the  speaker 
himself,  standing  in  his  place,  and  then  by  the  other  members  at 
the  table  in  the  middle  of  the  house,  while  the  house  is  sitting,  with 
the  speaker  in  the  chair,  and  aU  other  business  being  suspended  for 

1  The  privileces.of  the  commons,  since  the  forms,  not  at  all  essential  to  their  existence : 

passing  of  the  act  of  10  Geo.  III.  c.  50,  are  not  and  were  perhaps  never  intended  as  any  thing 

precisely  what  they  are  set  forth  to  be  in  the  more  than  a  recognition  of  the  commons  as  a 

speaker's  petition,  in  which  the  ancient  form  duly   organized   body,   and  as   from   thence- 

of  presenting  them  is  preserved.     The  speak-  forward  entitled  to  the  usual  privileges  of  a 

er's  demand,  and  the  king's  allowance,  of  the  house  of  commons, 
privileges  of  the  commons,   are  now  mere 

8 


86  LEGISLATIVE   ASSEMBLIES.  [PaRT    IL 

the  purpose,  bet\\^een  nine  o'clock  in  the  morning  and  four  in  the 
afternoon.^  Three  or.  four  days  are  usually  occupied  in  this  duty ; 
and  then,  the  commons  are  again  summoned  to  attend  in  the  lords, 
to  hear  the  causes  of  calling  the  parliament  declared,  either  by  the 
king  or  by  his  commissioners.  On  returning  to  the  house,  the 
speaker  reports  the  king's  speech  from  "  a  copy  he  has  obtained  to 
prevent  mistakes ; "  an  address  is  voted  in  answer  to  the  speech, 
and  from  thenceforward  the  business  of  the  house  proceeds  regu- 
larly.'-^ 

227.  At  the  same  time,  that  the  members  take  the  oaths,  each 
one  delivers  in  a  declaration  or  particular  of  his  property  qualifica- 
tion, and  subscribes  the  return  book  in  the  custody  of  the  clerk  of 
the  house.  K  members  refuse  or  neglect  to  take  the  oaths,  or  to 
deliver  in  their  property  qualification,  they  cannot  sit,  but  are  dis- 
charged from  being  members.  K  they  sit  and  vote  without  being 
"regularly  qualified,  they  also  subject  themselves  to  severe  penalties 
and  disabilities.'^ 


Section  II.    Preliminary  Proceedings  in  the  Legislative  Assem- 
blies OF  the  United  States. 

228.  In  this  country,  the  preliminary  steps,  as  well  as  the  subse- 
quent proceedings,  of  the  legislative  assemblies,  are  more  or  less 
analogous  to  the  corresponding  proceedings  of  the  house  of  com- 
mons ;  with  the  material  exception,  however,  that  the  practice  of 
presenting  the  presiding  officer  to  the  executive  power  for  approval, 
which  prevailed  in  the  provincial  assemblies,  was  wholly  abrogated 
by  the  revolution,  and  has  not  been  introduced  into  any  of  our 
present  constitutions  of  government.  According  to  our  practice, 
the  members  elected  and  returned  make  their  appearance  at  the 
time  and  place  appointed,^  and  proceed  to  organize  themselves  as  a 

1  30  Car.  II.  Stat.  2,  ch.  1.  iu  the  commons,   time  out  of  mind,  for  this 

'^  A  curious  custom  prevails  in  both  houses,  ceremony,  is  entitled  "  a  bill  for  the  more  ef- 

immediately  after  the  king's  speech  is  report-  fectual  preventing  of  clandestine  outlawries." 

ed,  for  the  purpose  of  asserting  the  right  of  ^  In  the  house  of  lords,  the  members  appear 

parliament,  if  the  two  houses  see  fit,  to  con-  in   their    places,   at  the  time   appohited,   in 

sider  of  any  other  business  they  please,   in  obedience   to   the  writ  of  summons   sent  to 

p»eference  to  the  subjects  referred  to  in  the  each   of  them  individually;  their   clerk  and 

speech  as  the  causes  of  summoning  the  par-  other  ofBcers  being  appointed  by  the  crown 

uaiuent.    This  custom  consists  in  reading   a  for  life  are  in  attendance;  and  the  lord  chan- 

bill,  which  is  prepared  for  the  purpose  by  the  cellor,  for  the  time   being,   is   the  presiding 

clerk,  and  ordering  it  to  be  read  a  second  time ;  officer. 

wiiich,  it  is  hardly  necessary  to  say,  is  never  *  In  some   of  the    States,  the   governor  iH 

done.    The  bill,  which  has  been  made  us«  of  authorized  by  the  constitution  to  change  the 


Chap.  I.]         assembling,  qualifying,  organization.  87 

legislative  body,  in  the  manner  regulated  by  law,  or  sanctioned  by 
usage. 

229.  The  right  to  assume  the  functions  of  a  member,  in  the  first 
instance,  and  to  participate  in  the  preliminary  proceedings  and 
organization,  depends  wholly  and  exclusively  upon  ihe  return  or 
certificate  of  election ;  those  persons  who  have  been  declared  elected 
and  are  duly  returned,  being  considered  as  members,  until  their 
election  is  investigated  and  set  aside,  and  those  who  are  not  so 
retmrned  being  excluded  from  exercising  the  functions  of  members, 
even  though  duly  elected,  until  their  election  is  investigated  and 
their  right  admitted.' 

230.  In  some  of  the  States,  the  names  of  the  persons  elected  and 
returned  are  officially  ascertained  before  the  time  of  assembling,  and 
a  list  or  schedule  made  and  the  members  themselves  notified  of 
their  election,  or  summoned  to  attend;  in  others,  the  returns  or 
certificates  are  either  given  to  the  members  elected,  or  sent  to  the 
assembly  which  is  thereby  to  be  constituted.  Where  the  former 
practice  prevails,  the  persons  summoned  and  no  others,  have  it  in 
their  power  to  assume  the  functions  of  members ;  where  the  latter 
mode  is  adopted,  it  is  in  the  power  of  any  person  claiming  to  have 
been  elected,  to  appear  and  assume  the  functions  of  a  member, 
without  being  in  fact  either  elected  or  returned.  In  the  former  case, 
the  returns  are  ultimately  laid  before  the  assembly  by  whom  they 
are  finally  judged  of.  In  the  latter,  they  are  counted  and  examined, 
in  the  first  instance,  by  the  members  themselves,  with  a  view  to 
determine  whether  they  may  be  allowed  to  proceed,  and  are  after- 
wards more  deliberately  examined,  usually,  by  a  committee  ap- 
pointed for  the  purpose,  with  a  view  to  determine  who  are  duly 
returned  as  members.  Members,  duly  returned,  continue  to  be  and 
act  as  members,  however  insufficient  their  returns,  elections,  or  rights 
of  membership  may,  in  fact,  be,  until  their  seats  are  declared  vacant 
by  the  assembly.  Members,  duly  returned,  but  who  have  acciden- 
tally left  their  returns  or  credentials  behind  them,-  either  at  their 
homes  or  then-  lodgings,  have  been  allowed,  upon  a  statement  of 
the  fact,  to  proceed  to  act,  and  be  qualified,  with  the  others,  being 
enjoined  in  the  mean  time  to  produce  their  return  as  soon  as  may 

place  of  meeting,  when  the  health,  lives,  or  pamphlet,  entitled,  "  Proceedings  and  Debates 

liberty,  of  the  members,  would  be  endangered  in  the  House  of  Representatives  of  the  Com- 

by  their  assembling  or  attempting  to  assemble  monwcalth  of  Massachusetts  during  the  four 

in  the  place  fixed  by  law.  days  previous  to  the  election  of  a  Speaker,  in 

1  Scobtl,  86;  Lex  Parliamentaria,  371.   See  January,  1843,  by  Luther  S.  Cnshing." 

also  the  Case  of  Thvmas  Xash,  Jr.,  Gushing,  "  J.   of  S.   16th   Cong.  Ist  Sess.  6;   Cong 

S.  &  J.,  439,  aiid  Chelsea,  Same,  474,  and  a  Globe,  XXIIL  App.  398. 


88  LEGISLATIVE  ASSEMBLIES.  [PaRT  IL 

be.  This  practice,  where  an  election  is  notorious,  or  the  member  is 
well  known,  is  not  likely  to  be  attended  ^vith  any  inconvenience. 
It  depends,  of  course,  upon  the  discretion  of  the  assembly. 

231.  Though  there  can  be  no  doubt,  on  the  ground  of  authority, 
that  the  return  or  certificate  required  by  law  is  the  only  evidence 
upon  which  one  is  entitled  to  assume  the  functions  of  a  member ; 
yet,  as  the  struggles  of  conflicting  parties  frequently  lead  to  contro- 
versies respecting  the  right  of  membership,  and  instances  have 
occurred  of  persons  attempting  to  act  as  members,  without  being 
legally  returned  ;  the  question  is  of  suflicient  importance  to  deserve  • 
a  careful  investigation,  in  order  that  the  decision  of  it  may  be 
placed  upon  the  grounds  of  reason  and  principle,  as  well  as 
authority. 

232.  In  every  free  representative  government,  upon  the  principles 
of  which  this  question  depends,  the  distinguishing  characteristic  is 
its  periodical  renewal  from  the  original  elements  of  all  govern- 
ment, namely,  the  immediate  wiU  of  the  people,  and,  in  order  to 
this  renewal,  it  is  indispensable,  that  the  will  of  the  people  should 
be  subject  to  no  other  control,  than  those  forms  of  proceeding 
which  must  necessarily  be  agreed  upon  beforehand,  or,  in  other 
words,  which  are  estabhshed  by  the  laws ;  that  is,  in  this  renewal 
of  the  sovereign  legislative  power,  the  course  of  proceeding  must  be 
from  the  people  themselves,  and  not  from  any  existing  or  pre- 
viously elected  officers ;  for,  otherwise,  instead  of  a  recreation  of 
the  legislative  power  from  its  origmal  elements,  the  forms  of  an 
election  might  merely  result  in  the  perpetuation  of  that  which  was 
aheady  existing,  and  thus  defeat  the  very  intention  and  object  of  a 
representative  government.  The  first  requisite,  therefore,  to  the 
existence  of  such  a  government,  is  freedom  of  election. 

233.  But  it  is  also  essential  to  the  very  idea  of  this  form  of  gov- 
ernment, that  the  electors  should  be  divided  into  separate  constitu- 
encies, either  territorially  or  otherwise,  for  the  purpose  of  effecting 
the  elections ;  and,  in  order  to  insure  equality  of  representation 
among  these  constituencies,  without  which  some  portion  of  the 
people  would  be  deprived  of  their  just  rights  in  the  functions  of 
self-government,  it  is  indispensable  to  regulate  beforehand,  by  law, 
both  the  manner  in  which  the  elections  shall  be  conducted,  and  the 
evidence  by  which  the  result  shall  be  authenticated;  otherwise, 
when  the  representatives  should  come  to  assemble  themselves 
together,  they  would  have  no  means  whatever  of  ascertaining  for 
themselves  whether  the  several  constituencies  were  duly  an^  prop- 
erly represented.  The  second  essential  requisite  of  a  free  represent- 
ative government,  therefore,  is  equality  of  representation. 


Chap.  L]        assembling,  qualifying,  organization. 


89 


234.  If  there  were  any  contemporaneous  power  lodged  any- 
where (except  in  the  representative  body  itself)  to  control  or  decide 
upon  the  elections  and  returns  of  members,  freedom  of  election 
would  be  wanting ;  and,  what  was  intended  to  be  a  renewal  or 
recreation  of  the  sovereign  legislative  power  would  be  but  a  per- 
petuation of  the  old.  If  there  were  no  regulations  agreed  upon 
beforehand,  as  to  the  manner  of  conducting  the  elections,  the  num- 
ber of  persons  to  be  returned,  and  the  evidence  by  which  the  elec- 
tions should  be  authenticated,  there  could  be  no  guarantee  for 
equality  of  representation. 

235.  It  follows,  therefore,  that  wherever  these  tw^o  principles, 
freedom  of  election,  and  equality  of  representation,  are  admitted  to 
be  fimdamental,  (as  they  are  in  all  the  constitutions  of  government 
in  this  country,)  the  manner  of  conducting  elections,  which  has 
been  established  by  the  laws,  and  the  evidence  agreed  upon  before- 
hand to  authenticate  them,  cannot  be  varied  or  departed  from  in 
any  important  particular,  consistently  with  the  very  nature  of  a 
representative  government,  and,  consequently,  that  the  only 
evidence,  by  virtue  of  which  any  one  can  rightfully  assume  or  be 
permitted  to  assume  the  functions  of  a  member  of  a  legislative 
assembly,  under  such  a  form  of  government,  is  the  return  or  certifi- 
cate which  contains  and  embodies  the  result  of  the  proceedings  at 
the  election,  as  decided  upon  by  the  returning  officers.^ 

236.  The  rule  which  has  just  been  considered  applies  not  only 
to  the  case  of  one  assuming  or  claiming  a  right  to  assume  the  char- 
acter of  a  member,  without  the  regular  and  established  evidence  of 
a  return  or  certificate ;  but  also  to  the  case  of  two  or  more  persons 
claiming  adversely  to  one  another,  each  of  whom  possesses  a  return 
or  certificate,  which  would  be  sufficient,  if  the  others  were  not  in 
possession  of  evidence  of  right  of  apparently  equal  validity ;  so 
that  where  adverse  claimants  are  returned,  neither  can  sit  until  his 
right  is  determined,  any  more  than  any  one  claimant  can  sit  with- 
out any  return.  In  England,  the  case  of  double  returns  is  not  at 
all  uncommon,  and  an  order  is  always  passed  in  the  house  of  com- 
mons at  the  commencement  of  each  session,  prohibiting  persons  so 
returned  from  sitting  or  voting,  until  the  question  of  their  election 
has  been  determined.  In  this  country,  for  reasons  akeady  stated,'^ 
double  returns  are  more  infrequent ;  whenever  they  do  happen, 
none  of  the  persons  so  returned  ought  to  presume  to  take  any  part 
in  the  proceedings,  until  their  conflicting  claims  have  been  consid- 

1  See  the  pamphlet  before  cited.  *  See  ante  §  135. 

8* 


90  •  LEGISLATIVE    ASSEMBLIES.  [PaRT    II, 

ered  and  decided.  In  Massachusetts,  several  cases  of  this  kind 
have  occurred,  in  which  the  parties  appeared  and  took  seats  in  the 
house,  but  were  suspended  from  acting,  until  their  respective  claims 
had  been  decided.^ 

237.    Where  the  proceedings,  preliminary  to  an  organization,  are 
such,  that  no  person  can  intrude  himself  without  possessing  the 
regular  evidence  of  election,  no  difRcrdty  is  likely  to  arise  in  the 
constitution  of  the  assembly.     But,  where  this  is  not  the  case,  it  is 
obvious,  that  persons  claiming  the  right  of  membership,  without 
possessing  the  requisite  evidence,  may  insist  upon  participating  in 
the  preliminary  proceedings,  and  thus  give  rise  to  questions,  which 
there  is  no  authority  but  their  own  to  decide.     In  England,  persons 
not  returned  as  members,  whose  names  of  course  are  not  on  the 
book  of  returns,  could  hardly  be  able  to  obtain  access  to  the  house ; 
and,  if  they  could  do  so,  there  is  not  the  same  inducement  there  as 
in  this  country,  to  make  the  attempt.     The  house  of  commons 
consists  of  six  hundred  and  fifty-eight  members,  a  number  much 
larger  than  any  legislative  assembly  here ;  and  quite  unlikely,  there- 
fore, constituted  as  it  now  is,  to  be  so  nearly  equally  divided,  as  to 
make  the  political  character  of  the  house  depend  upon  the  manner 
in  which  the  controverted  elections  and  rights  of  membership  are 
settled.     Besides,  in  that  body,  it  is  comparatively  a  matter  of  Uttle 
importance,  from   which  party  the  speaker  is   elected ;    and   the 
speaker  is  the  only  one  of  the  officers  who  is  elected  by  the  house ; 
the  clerk  and  sergeant-at-arms    holding  their  offices  for   life   by 
appointment  from  the  crown.     The  speaker  of  the  house  of  com- 
mons, though  holding  an  office  of  great  dignity  and  importance, 
does  not  exercise  nearly  as  much  direct  influence  upon  the  pro- 
ceedings of  the  house,  as  is  exercised  by  the  same  officer  in  our 
legislative  assemblies.     One  single  point  of  difference  between  the 
functions  of  the  two  will  serve  to  explain  the  relative  authority 
which  they  possess.     With  us,  it  is  the  almost  invariable  practice 
to  confer  upon  the  presiding  officer  the  appointment  of  all  commit- 
tees ;  which,  whenever  the  subject  to  be  refen-ed  is  of  a  political 
character,  are  always  constituted  upon  a  party  basis ;  aU  parties 
being  duly  represented,  but  the  dominant  party  in  the  house  of 
course  predominating.     In  England,  committees  are  usually  named 
in  the  first  instance,  by  the  member,  who  proposes  the  resolution 
for  their  appointment,  subject,  of  course,  to  the  control  of  the 

1  See   Adfims,     Gushing,     S.     &    J.,     13 ;      also,  Letcher  v.  Mcore,  Clarke  &  Hull,  715, 
Hopkint,n,   Same,   261;    Hanoich,  Same,  S8;      and  the  case  of  the  New  Jersey  members. 
Troy,   Same,   56;    Cltester,   Same,   238.     See 


Chap.  L]       assembling,  qualifying,  organization.  91 

nouse.  On  great  and  important  occasions,  they  are  chosen  oy 
ballot.  And  the  most  important  committees,  considered  merely 
with  reference  to  the  state  of  parties,  namely,  election  committees 
are  selected,  as  we  have  already  seen,  in  such  a  manner,  as  leaves 
very  little,  if  any  thing,  in  the  power  of  the  speaker.  With  us, 
therefore,  the  organization  is  certainly  a  matter  of  much  more 
interest,  if  not  of  more  importance,  than  it  is  in  England. 

238.  Hence  it  has  occurred  more  than  once,  that  struggles  for 
political  power  have  begun  among  the  members  of  our  legislative 
assemblies  even  before  their  organization ;  and  it  has  happened,  on 
the  one  hand,  that  persons  whose  rights  of  membership  were  in  dis- 
pute, and  who  had  not  the  legal  and  regular  evidence  of  election. 
have  taken  upon  themselves  the  functions  of  members ;  and  on  the 
other,  that  persons  having  the  legal  evidence  of  membership  have 
been  excluded  from  participating  in  the  proceedings.  The  house 
of  representatives  in  congress  was  once  delayed  in  its  organization 
by  conflicting  claims  of  this  description.  Another  instance  of  the 
same  dilHculty  occurred  in  the  State  of  Massachusetts,  in  the  year 
1843.  And  recently,  one  branch  of  the  legislature  of  one  of  the 
most  important  States  in  the  Union  has  found  itself  wholly  unable 
to  organize,  for  a  similar  reason. 

239.  Occurrences  lilce  these  naturally  lead  to  two  inquiries, 
namely :  first,  what  should  be  done  in  the  particular  case ;  and, 
second,  what  should  be  done  to  prevent  the  recurrence  of  such  a 
state  of  things  for  the  future.  It  is  proposed  to  state  the  principles 
of  parliamentary  law,  which  apply  to  and  indicate  the  answer 
which  should  be  given  to  both  these  inquiries. 

240.  I.  What  should  be  done  in  the  particular  case.  The  prin- 
ciples of  parliamentary  law  applicable  to  the  question  are  perfectly 
simple  and  plain ;  founded  in  the  very  nature  of  things ;  established 
by  the  uniform  practice  and  authority  of  parliament ;  and  con- 
firmed by  reason  and  analogy.  These  principles  are  as  follows  :  — 
first,  that  every  person  duly  returned  is  a  member,  whether  legally 
elected  or  not,  until  his  election  is  set  aside ;  second,  that  no  per- 
son, who  is  not  duly  returned,  is  a  member,  even  though  legally 
elected,  until  his  election  is  established;  third,  that  conflicting 
claimants,  both  in  form  legally  returned,  are  neither  of  them 
entitled  to  be  considered  as  members,  until  the  question  between 
them  has  been  settled ;  and,  fourth,  that  those  members,  who  are 
duly  returned,  and  they  alone,  (the  members  whose  rights  are  to 
be  determined  being  excluded,)  constitute  a  judicial  tribunal,  for 
the  decision  of  all  questions  of  this  nature. 


92  LEGISLATIVE   ASSEMBLIES.  [PaET   ll 

241.  Where  the  number  of  members  admitted  on  all  sides  to  be 
legally  returned  is  sufficient  for  the  purpose,  these  principles  may 
be  and  invariably  are  applied  and  enforced,  without  difficulty. 
Where  this  is  not  the  case,  —  where  there  is  no  acknowledged 
majority  to  decide  the  question,  and  to  compel  obedience  to  its 
decisions,  —  each  individual  member  must  decide  it  for  himself. 
In  such  a  state  of  things,  therefore,  let  each  member  apply  the  prin- 
ciples above  stated  to  his  own  case  and  conduct  himself  accord- 
ingly. The  result  wiU  be,  either  that  one  side  will  yield,  or  that 
both  ^\dll  remain  in  the  condition  which  they  have  respectively 
chosen.  Li  the  first  case,  the  party  yielding  waives  its  supposed 
rights  for  the  time  being,  and  submits  its  claims  to  the  only 
contemporary  tribunal  competent  to  decide  upon  them,  and  trusts 
to  its  honor,  patriotism,  and  sense  of  justice.  K  this  reliance 
proves  in  vain,  and  right  and  justice  are  sacrificed  to  party  ;  there 
is  no  alternative  but  to  appeal  to  that  tribunal,  which  revises  the 
decision  of  aU  others ;  the  tribunal  of  the  future  eternally  and  every- 
where sitting  in  judgment  upon  the  past;  whose  judges  are  the 
people,  and  whose  judgments  are  recorded  in  public  opinion.  If 
neither  party  will  yield,  and  no  organization  can  legally  and  con- 
stitutionally be  made,  there  seems  to  be  no  other  alternative,  than 
a  suspension  of  the  functions  of  the  legislative  department,  so  long 
as  this  state  of  things  continues,  or  for  the  period  of  its  official 
existence.  The  effect  of  this  must  depend,  of  course,  upon  the 
constitution  of  each  particular  State.  In  all  the  States,  it  is 
believed,  the  legislative  body  expires  at  all  events,  with  the  period 
for  which  it  was  chosen ;  whUe  the  officers  of  the  executive  and 
judiciary  remain  in  office  until  their  successors  are  chosen  or 
appointed  and  duly  qualffied.  The  state  of  things  alluded  to 
would  therefore  result  merely  in  a  suspension  of  the  legislative 
function  for  a  period  somewhat  longer  than  usual;  leaving  the 
other  departments  of  government  to  go  on  with  their  official  duties, 
in  the  same  manner,  in  which  they  ordinarily  were  accustomed 
to  do,  when  the  legislative  body  was  not  in  session.  This,  though 
extremely  undesirable  and  likely  to  be  attended  with  many  tem- 
porary inconveniences  and  embarrassments,  is  very  far  from  being 
a  dissolution  or  suspension  of  government.  It  would  be  analo- 
gous rather  to  what  has  repeatedly  ha})pened  in  England,  when  a 
premature  dissolution  of  parliament  has  become  necessary,  in 
consequence  of  irreconcilable  disputes  and  controversies  between 
the  two  houses. 

242.  11.    What  should  be  done  to  prevent  the  recurrence  of  such  a 


CeAP.  L]  ASSEMBLmO,   QUALIFYING,   ORGANIZATION.  93 

» 

state  of  things  for  the  future. —  The  only  mode  in  which  an  organi- 
zation can  be  secured,  at  all  events,  is  to  designate  by  law  the  per- 
sons who  shall  temporarily  constitute  the  officers  of  the  assembly. 
Li.  France,  under  the  old  constitution,  it  was  provided,  that,  on  the 
assembling  of  the  deputies,  the  oldest  member  should  take  the  chair 
as  president,  the  five  youngest  members  should  act  as  secretaries ; 
and  that  the  assembly,  thus  temporarily  constituted,  should  pro- 
ceed to  a  verification  of  the  powers  of  the  members,  or,  in  other 
words,  should  ascertain  who  were  duly  returned.  A  similar  pro- 
vision has  been  introduced  into  the  laws  of  the  State  of  Massachu- 
setts with  respect  to  the  organization  of  the  house  of  representa- 
tives. The  returns  are  made  into  the  office  of  the  secretary  of  the 
commonwealth  before  the  day  of  assembling ;  that  officer  furnishes 
the  sergeant-at-arms  with  a  list  of  the  members  so  returned,  who 
alone  are  to  be  admitted  into  the  chamber  of  the  house ;  the  oldest 
of  the  members  (not  the  oldest  person)  thus  admitted  takes  the 
chair  as  presiding  officer ;  the  clerk  of  the  preceding  house  acts  as 
clerk,  until  his  successor  is  chosen  and  qualified ;  the  sergeant-at- 
arms  in  like  manner  continues  in  office  until  a  new  one  is  chosen ; 
and  the  house  is  thus  completely  organized  for  the  temporary  pur- 
pose of  ascertaining  who  are  in  fact  members,  and  indeed  for  all 
necessary  purposes,  until  new  officers  are  regularly  chosen. 

243.  The  members  elect  of  a  legislative  assembly  being  met 
together,  at  the  time  and  place  appointed  by  the  constitution  or 
law  for  their  assembling,  they  proceed,  at  once,  to  take  the  neces- 
sary steps  to  enable  them  to  discharge  the  functions  of  members, 
that  is,  to  take  the  oath  required,  and  to  organize  themselves,  by 
the  choice  of  the  proper  officers.  For  this  purpose,  they  are  either 
authorized  to  proceed  without  the  presence  of  any  particular  num- 
ber, or  that  of  a  specified  number  may  be  required. 

244.  In  the  States  of  Maine,  New  Hampshire,  and  Massachu- 
setts, where  the  senate  is  to  consist  of  a  certain  specified  number 
of  members,  elected  by  the  districts  into  which  those  States  are 
respectively  divided  for  the  purpose,  if  there  is  a  failure  in  any 
instance  to  elect  by  the  people,  the  vacancies  in  the  senate  are  to 
be  filled,  on  the  day  appointed  for  the  assembling  of  the  legislature, 
by  the  house  of  representatives  and  such  members  of  the  senate  as 
may  be  elected  and  summoned  to  attend  accordingly,  firom  among 
the  candidates  who  received  the  highest  number  of  votes  for  sena- 
tors and  were  not  elected.  For  the  purpose  of  filling  these  vacan- 
cies, and  taking  the  necessary  preliminary  steps  thereto,  no  particular 
number  either  of  the  senate  or  house  is  necessary,  or  for  adjourn- 


94  LEGISLATIVE   ASSEMBLIES.  [PaRT   IL 

• 

ment  from  day  to  day,  for  the  same  purpose,  although  a  certain 
specified  number  is  required  to  be  present  therein,  respectively,  for 
the  doing  of  any  ordinary  business. 

245.  In  the  States  above  mentioned,  therefore,  the  vacancies  in 
the  senate  may  be  filled  by  those  members  of  the  two  branches  who 
are  duly  returned,  and  attend  on  the  day  of  assembling,  though  they 
do  not  amount  to  the  number  requisite  to  the  transaction  of  busi- 
ness; but  in  other  States,  and  in  the  federal  government,  whose 
legislative  bodies  are  not  authorized  to  proceed  in  this  manner,  their 
right  to  proceed  to  organize  on  their  first  assembling  is  supposed  to 
depend,  like  their  authority  to  proceed  afterwards  with  the  transac- 
tion of  business,  upon  the  presence  or  absence  of  a  certain  specified 
number  of  members,  denominated  a  Quorum,  which  will  be  treated 
of  immediately  in  connection  with  this  subject. 


Section  III.     Quorum. 

246.  It  being  a  general  rule,  that  where  authority  is  conferred 
upon  several  persons,  to  be  exercised  with  others,  all  the  persons 
authorized  must  be  present,  in  order  to  exercise  it,  and  that  author- 
ity delegated  to  the  discretion  of  an  Individual,  cannot  be  delegated 
by  him  to  another ;  it  would  be  a  consequence  of  these  principles, 
if  they  were  strictly  appUed  to  the  proceedings  of  legislative  assem- 
blies, the  members  of  which  have  but  a  merely  delegated  authority 
themselves,  and  constitute  a  representative  body,  that  the  members 
must  all  necessarily  be  present,  and  concur,  in  order  to  the  doing  of 
any  valid  official  act.  But  this  would  be  extremely  inconvenient,  in 
general,  and,  in  the  greater  number  of  our  legislative  assemblies, 
which  are  bodies  of  considerable  size,  would  render  then*  proceeding 
wholly  impracticable.  Hence  it  has  been  found  indispensable,  in 
the  constitution  of  legislative  assemblies,  to  make  them  an  ex- 
ception, in  both  these  respects,  to  the  general  principles  above 
stated. 

247.  In  all  councils  and  other  collective  bodies  of  the  same  kind, 
it  is  necessary,  therefore,  that  a  certain  specified  number,  called  a 
quorum,^  of  the  members,  should  meet  and  be  present,  in  order  to 
the  transaction  of  business.  This  number  may  be  jprecisely  fixed 
in  the  first  instance,  or  some  proportional  part  established,  leaving 
the  particular  number  to  be  afterwards  ascertained,  with  reference 

1  For  the  origin  of  this  term,  see  Blackstone's  'Commentaries,  I.  351. 


CeAP.  I.  ]  ASSEMBLING,   QUALIFYING,   ORGANIZATION. 


95 


to  each  assembly,  and  this  may  be  done  either  by  usago,  or  by 
positive  regulation  ;  and,  if  not  so  determined,  it  is  supposed,  that  a 
majority  of  the  members  composing  Ihe  body  constitute  a  quorum. 
If  the  required  number  is  not  present,  at  Ihe  time  appointed  for 
the  meeting  of  a  legislative  assembly,  the  members  can  ordinarily 
do  nothing  more  than  adjourn  from  day  to  day,  and  wait  for  the 
requisite  number,  unless  they  are  specially  authorized  to  take  meas- 
ures to  compel  the  attendance  of  absent  members.  In  this  country, 
the  number  necessary  to  constitute  a  quorum  is,  in  all  the  States, 
respectively,  and  in  the  congress  of  the  United  States,  regulated 
by  constitutional  provisions. 

248.  In  the  British  parliament,  according  to  the  ancient  and 
invariable  usage  of  the  two  houses,  as  evidenced  by  their  rules, 
three  is  the  number  necessary  to  constitute  a  quorum  of  the  lords,^ 
and  forty  a  quorum  of  the  commons.^  These  numbers,  respectively, 
although  estabhshed  by  and  dependent  upon  usage  merely,  and 
within  the  power  of  each  house  to  abrogate  or  change  at  any  tirae,^ 
have  nevertheless  the  force  of  standing  orders,*  that  is,  they  are 
equally  binding  upon  every  succeeding  parliament  until  abrogated, 


1  May,  191. 

*  This  number,  which  appears  to  have  been 
first  recognized  as  the  quorum  of  the  com- 
mons, on  the  5th  of  January,  1640,  (Comm. 
Jour.  II.  63,)  depends  only  on  usage,  and  may 
be  altered  at  pleasure.  From  an  entry  on  the 
20th  April,  1607,  (Comm.  Jour.  I.  364,)  it 
seems,  that  sixty  was  not  then  a  sufficient 
number.  An  attempt  was  made  in  the  com- 
mons, March  18,  1801,  (Comm.  Jour.  LVI. 
188,)  to  make  the  quorum  sixty,  but  it  fiiiled. 

*  It  is  somewhat  surprising,  that  in  refei^ 
ence  to  so  simple  a  matter  as  the  number 
necessary  to  constitute  a  quorum  of  either 
house  of  parliament,  there  should  be  any 
diversity  of  statement  among  well-informed 
writers.     But  such  is  nevertheless  the  fact. 

Judge  Story,  (Com.  on  Const.  II.  295,)  says 
'Jiat  the  number  of  forty-five  constitutes  a 
luorum  to  do  business  in  the  house  of  com- 
mons. And  he  adds,  in  a  note,  "  I  have  not 
jeen  able  to  find,  in  any  'books  within  my 
/each,  whether  any  particular  quorum  is  re- 
quired in  the  house  of  lords." 

Chancellor  Kent,  (Com.  I.  235,  note  b,) 
saj's :  —  "  In  the  English  house  of  commons, 
forty  members  used  to  form  a  quorum  for 
business,  but  in  1833,  the  requisite  number 
was  reduced  to  twenty." 

The  authors  of  a  French  work  —  ConfecHcm 
de$  Lois,  (1839,)  p.  163, —having  spoken  of 
'orty  members  as  a  quorum  of  the  house  of 


commons,  add,  in  a  note,  that  the  number  is 
now  fixed  at  twenty. 

The  notion,  that  the  quorum  of  the  com- 
mons had  been  reduced  from  forty  to  twenty, 
arose  from  the  fiict,  that,  in  the  years  1833 
and  1834,  the  house  met  for  the  transaction 
of  private  business  at  three  o'clock,  and  at 
five,  proceeded  to  the  public  business  as  be- 
fore; the  quorum  for  the  two  hours  devoted 
to  private  business  was  fixed  at  twenty  mem- 
bers ;  leaving  the  quorum  for  the  general  busi- 
ness of  the  house  at  forty,  as  it  had  been 
established  by  usage  time  out  of  mind.  This 
arrangement  for  private  business  was  not  re- 
newed after  1834. 

The  origin  of  the  number  three  as  a  quorum 
of  the  house  of  lords  undoubtedly  arose  from 
a  principle  of  the  Roman  law,  that  three  per- 
sons suffice  to  make  a  college  —  collegium, 
equivalent  to  our  word  corporation,  in  most 
of  its  legal  features. 

*  By  the  system  of  standing  orders,  which 
is  in  use  in  England,  it  is  in  the  power  of  the 
house  of  commons,  at  any  time,  by  simply 
declaring  one  of  its  orders  a  standing  order,  to 
make  it  binding  on  or  in  force  in  a  succeeding 
house  of  commons,  as  much  as  if  it  was  an 
order  of  that  house  itself.  This  system  does 
not  prevail  in  this  country.  It  is  not  in  the 
power  of  a  legislative  assembly  here  to  make 
any  rules  to  bind  its  successoi-s.  That  can 
only  be  done  by  constitutional  pro^'^■;ion  or 


96  LEGISLATIVE  ASSEMBLIES.  [PaRT    II. 

and  do  not  require  to   be  specially  adopted  in   order  to  be  in 
force. 

249.  In  this  country,  the  number  necessary  to  form  a  quorum  is 
different  in  each  legislative  assembly,  according  to  its  size,  the 
quorum  being  for  the  most  part  fixed  at  some  aliquot  part,  as  foi 
example,  two  thirds,  or  a  majority  of  each ;  and,  of  course,  being 
established  only  by  constitutional  provision,  the  number  is  in  force 
at  the  commencement  of  each  session,  and  is  unalterable  by  the 
assemblies  themselves. 

250.  In  the  constitutions  of  the  United  States  and  of  the  follow- 
ing named  States,  it  is  provided,  in  the  same  words,  that  "  a  ma- 
jority of  each  house  shall  constitute  a  quorum  to  do  business," 
namely :  —  Maine,  Rhode  Island,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Virginia,  South  Carolina,  Florida, 
Alabama,  Mississippi,  Michigan,  Missouri,  Iowa,  Wisconsin,  and 
California.  In  the  constitutions  of  New  Hampshire,  (as  to  the  house 
of  representatives,)  Maryland,  and  Vermont,  the  same  proportional 
number  is  established  in  equivalent  terms.  In  the  constitution  of 
Ohio  it  is  declared,  that  "  a  majority  of  aU  the  members  elected  to 
each  bouse  shall  be  a  quorum  to  do  business." 

251.  In  the  constitution  of  Illinois,  it  is  provided,  that  "  two 
thirds  of  each  house  shall  constitute  a  quorum,"  and  in  those  of 
Tennessee,  Indiana,  Arkansas,  and  Texas,  that  "  two  thirds  of  each 
house  shall  constitute  a  quorum  to  do  business."  ^ 

252.  In  the  constitution  of  New  Hampshire,  it  is  provided  that, 
"  not  less  than  seven  members  of  the  senate  shall  make  a  quorum 
for  doing  business,"  and  in  that  of  Massachusetts,  "  that  not  less 
than  sixteen  members  of  the  senate  and  sixty  members  of  the  house 
of  representatives  shaU  constitute  a  quorum  for  doing  business." 
The  constitutions  of  Louisiana  and  Kentucky  declare,  that  "not 
less  than  a  majority  of  the  members  of  each  house  shall  constitute 
a  quorum  to  do  business;"  that  of  Georgia  that  "a  majority  of 
each  house  shaU  be  authorized  to  proceed  to  business ; "  while  that 
of  North  Carolina  provides,  that  "neither  house  of  the  general 
assembly,  shall  proceed  upon  public  business  unless  a  majority  of 
all  the  members  of  such  house,  are  actually  present."     The  assem- 

by  law.  Each  assembly,  indeed,  usually  i  In  the  several  assemblies,  therefore,  men- 
adopts  the  rules  and  orders  of  its  predecessors,  tioned  in  this  and  the  precedirtg  paragraph, 
in  express  terms,  and  until  this  is  done,  they  the  number  necessary  to  a  quorum  is  so  fixed 
are  not  in  force  at  all.  There  is  an  interval,  by  the  constitutions  of  the  States,  to  which 
therefore,  of  more  or  less  duration,  at  the  they  respectively  belong,  that  it  cannot  be 
commencement  of  each  assembly  in  this  coun-  varied  therefrom  by  those  assembUes  them- 
try,  when  the  only  rules  in  force  in  it  are  selves. 
those  of  the  common  parliamentary  law. 


Chap.  L]        assembling,  qualifying,  organization.  97 

blies,  therefore,  in  the  States  mentioned  above,  may  establish  the 
quorum  of  each  at  any  number  they  please,  provided  it  is  not  less 
than  the  constitutional  number.  Thus,  in  Massachusetts,  where 
the  senate  is  to  consist  of  forty  members,  not  less  than  sixteen  of 
whom  are  to  constitute  a  quorum,  that  body  may  itself  determine 
upon  and  fix  its  own  quorum  at  any  number  between  sixteen  and 
forty. 

253.  In  some  of  the  ways  above  mentioned,  the  quorum  of  each 
legislative  assembly  becomes  established  at  a  fixed  number ;  the 
presence  or  absence  of  which  can  always  be  ascertained  by  count- 
ing. This  is  usually  done,  after  the  assembly  is  constituted,  by  its 
presiding  officer,  who  announces  or  reports  the  result.  In  the 
senate  of  the  United  States  this  duty  is  performed  by  the  sergeant- 
at-arms,  upon  whose  report  to  the  presiding  officer,  the  latter  an- 
nounces the  result.  For  the  purpose  of  ascertaining  whether  a 
quorum  is  present,  every  person,  who  is  entitled  to  vote,  that  is, 
every  person,  whose  return  ae  a  member  has  been  admitted,  and 
who  has  been  regularly  sworn  as  such,  and  no  other  person,  is  to 
be  counted.  This  rule  excludes,  first,  all  mere  claimants  to.  seats, 
whose  claims,  however  well  founded  they  may  be,  are  not  yet  ad- 
mitted ;  but  it  does  not  affect  the  right  of  persons  duly  returned, 
however  ill  founded  their  claim  may  be,  and  notwithstanding  their 
elections  may  be  controverted.  In  the  second  place,  it  excludes  the 
presiding  officer,  when  he  is  not  a  member  of  the  body  over  which 
he  presides,  but  presides  in  virtue  of  his  election  or  appointment  to 
some  other  office.  Thus,  the  lord  chancellor,  who  presides  over  the 
house  of  peers,  in  virtue  of  his  office  of  chancellor,  is  not  counted 
to  make  a  quorum  of  that  body,  unless  he  is  also  a  peer  and  as 
such  a  member  of  the  house  of  lords.  So,  also,  the  vice-president 
of  the  United  States,  who,  by  virtue  of  his  office,  is  the  presiding 
officer  of  the  senate,  is  not  counted  as  a  member,  to  make  a  quorum 
of  that  body,  notmthstanding  he  is  expressly  entitled,  by  the  con- 
stitution, to  give  the  casting  vote  therein,  when  the  senate  is  equally 
divided.  In  the  third  place,  the  rule  above  mentioned  excludes 
the  representatives  of  territories  in  the  lower  house  of  congress, 
denominated  delegates,  from  being  counted  therein  as  members,  to 
make  a  quorum,  although  by  law  they  exercise  all  the  functions  of 
members  except  that  of  voting. 

254.  In  the  constitutions  of  the  United  States,  and  of  all  the 
States,  except  Massachusetts,  New  Hampshire,  New  York,  New 
Jersey,  and  North  Carolina,  it  is  expressly  provided,  that  a  less 
number  than  a  quorum  may  adjourn  from  day  to  day      This  pro- 

9 


98  LEGISLATIVE   ASSEMBLIES.  [PaRT   II. 

vision,  being  general,  is  applicable  as  well  before  as  after  the 
organization.  But  as  a  legislative  assembly,  when  duly  convened, 
cannot  be  adjourned  without  day,  or  dissolved,  but  by  lapse  of 
time,  or  in  the  manner  provided  by  law ;  and  as  an  adjournment 
from  day  to  day  can  have  no  other  effect  than  to  enable  those  who 
attend  personally  to  ascertain,  in  the  most  convenient  manner, 
when  the  requisite  number  is  present ;  it  can  scarcely  be  thought 
necessary  to  the  existence  of  such  a  power,  that  it  should  be  ex- 
pressly conferred ;  and  therefore  it  may  be  considered  to  exist,  as 
well  in  those  States  whose  constitutions  are  silent  on  the  subject, 
as  in  those  where  it  is  expressly  conferred. 

255.  If,  on  the  day  appointed  for  the  meeting,  the  requisite 
number  of  members  is  not  present,  those  who  attend  can  only 
adjourn  until  the  next  day,  and  so  on  from  day  to  day,  until  the 
requisite  number  appears,  or  a  prorogation  or  dissolution  takes 
place  ;  unless  a  smaller  number  than  a  quorum  should  be  expressly 
authorized  to  compel  the  attendance  of  absent  members ;  in  which 
case,  proceedings  may  take  place  for  that  purpose.  In  reference  to 
this  subject,  various  provisions  are  in  force.  Those  only  which  are 
found  in  the  several  constitutions  will  be  briefly  noticed. 

256.  I.  The  constitution  of  the  United  States  provides,  that  a 
smaller  number  than  a  quorum  "  may  be  authorized  to  compel  the 
attendance  of  absent  members,  in  such  manner,  and  under  such 
penalties,  as  each  house  may  provide."  The  same  provision  is 
found  in  the  constitutions  of  New  Jersey  and  Alabama,  and  with  a 
slight  verbal  alteration  in  those  of  Delaware  and  Virginia ;  in  the  con- 
stitutions of  Maine  and  Arkansas,  and  with  a  shght  verbal  altera- 
tion, in  those  of  Rhode  Island,  Maryland,  and  Missouri,  the  language 
is,  that  a  less  number  than  a  quorum  "  may  compel  the  attendance 
of  absent  members,  in  such  manner  and  under  such  penalties,  as 
each  house  shall  provide."  The  constitutions  of  Georgia,  Florida, 
Michigan,  Texas,  Missouri,  Iowa,  Wisconsin,  and  California,  con- 
tain clauses,  similar  in  substance  to  those  last  mentioned.  Con- 
stitutional provisions,  of  this  kind,  do  not  confer  any  present 
authority  of  themselves  to  compel  the  attendance  of  absent  mem- 
bers ;  nor  do  they  authorize  the  conferring  of  any  such  power  by 
law ;  they  merely  authorize  each  house,  when  duly  constituted,  to 
compel  the  attendance  of  its  members.^  Consequently  they  can 
have  no  operation  until  after  the  organization. 

1  Congressional  Globe,  XVI.  977.  In  the  teen  members,  including  the  speaker,  if  there 
rnles  and  orders  of  the  house  of  representa-  is  one,  sluill  be  authorized  to  compel  the 
tives  in  congress,  it  is  provided,  that  any  fif-     attendance  of  absent  memlters. 


Chap.  L]        assembling,  qualifying,  organization.  99 

257.  11.  The  constitution  of  Pennsylvania  provides,  that  a 
Bmaller  number  than  a  quorum  "may  be  authorized  by  law  to  com- 
pel the  attendance  of  absent  members  in  such  manner  and  under 
such  penalties  as  may  be  provided."  That  of  Tennessee  contains 
a  similar  clause.  In  the  constitution  of  Louisiana,  which  contains 
a  like  provision,  the  word  "shall"  is  inserted,  instead  of  "may." 
The  constitutions  of  Kentucky  and  Ohio  have  the  same  provision 
in  substance  as  that  of  Pennsylvania.  Clauses  of  this  description 
authorize  the  legislatures  of  the  States  in  which  they  prevail,  to 
provide  beforehand,  by  law,  that  each  legislative  assembly,  though 
containing  less  than  a  quorum,  may  compel  the  attendance  of  its 
members ;  and  this  authority  may  as  well  be  exercised,  so  as  to 
relate  to  the  first  assembling,  as  after  the  constitution  of  the  as- 
sembly. When  this  is  the  case,  if  the  requisite  number  do  not 
appear,  those  who  do,  may,  of  course,  resort  to  the  measures,  pro- 
vided by  law,  to  compel  the  attendance  of  absent  members. 

258.  III.  In  the  constitution  of  Rhode  Island,  it  is  provided,  that 
«  a  less  number  than  a  quorum  of  each  house  may  compel  the  attend- 
ance of  absent  members,  in  such  manner,  and  under  such  penalties, 
as  may  be  prescribed  by  such  house  or  by  law;"  in  those  of 
Lidiana  and  Illinois,  the  terms  are,  that  "  a  smaller  number  may 
meet,  adjourn  from  day  to  day,  and  compel  the  attendance  of 
absent  members."  In  the  first-mentioned  State,  certainly,  and  it  is 
presumed,  also,  in  the  others,  provision  may  be  made  either  by  law, 
or  by  each  house  acting  for  itself,  to  enforce  the  attendance  of 
absent  members. 

259.  IV.  The  constitutions  of  Massachusetts,  New  Hampshire, 
Vermont,  New  York,  and  North  Carolina,  are  silent  with  reference 
to  this  subject.  But  it  can  scarcely  be  doubted,  that  in  those  States, 
and  in  those  where  the  power  is  confeiTcd  upon  the  legislative 

'bodies  themselves,  as  well  as  in  those  whose  constitutions  author- 
ize the  regulation  of  this  matter  by  law,  the  subject  may  be  made 
one  of  ordinary  legislation. 

260.  VV^hen  the  number  necessary  to  constitute  a  quorum  is 
fixed  absolutely,  as  in  Massachusetts,  it  is  only  necessary  to  count 
the  members  present,  in  order  to  ascertain  whether  the  requisite 
number  is  in  attendance  ;  so  where  the  quorum  is  some  aliquot 
part  of  the  whole  number,  as  two  thirds,  or  a  majority,  provided 
the  whole  number  is  fixed  by  law ;  but,  where  the  number  neces- 
sary to  form  a  quorum  is  an  aliquot  part  of  the  whole,  and  the 
number  of  which  the  whole  assembly  may  consist  is  uncertain, 
depending  upon  the  number  of  constituencies  which  elt^ct  mem- 


100  LEGISLATIVE  ASSEMBLIES.  [PaRT   IL 

bers,  or  the  number  of  elections  that  take  place,  it  is  necessary,  in 
the  first  instance,  to  ascertain  how  many  the  body  consists  of, 
before  proceeding  to  determine  whether  a  quorum  is  present ;  and, 
in  order  to  do  this,  it  is  clear  that  those  who  are  duly  returned  and 
those  only  must  be  reckoned  as  members.  In  all  cases,  therefore, 
it  seems  to  be  manifest,  that  a  less  number  than  a  quorum  must 
have  power,  at  least,  provisionally,  from  the  very  necessity  of  the 
case,  to  examine  and  decide  upon  the  returns ;  for,  other^vise,  it 
miglit  be  impossible  to  ascertain  how  many  members  were  present. 

261.  When  the  number,  of  which  an  assembly  may  consist,  at 
any  given  time,  is  fixed  by  constitution,  and  an  aliquot  proportion 
of  such  assembly  is  required  in  order  to  constitute  a  quorum,  the 
number  of  which  such  assembly  may  consist  and  not  the  number 
of  which  it  does  in  fact  consist,  at  the  time  in  question,  is  the 
number  of  the  assembly,  and  the  number  necessary  to  constitute  a 
quorum  is  to  be  reckoned  accordingly.^  Thus,  in  the  senate  of  the 
United  States,  to  which  by  the  constitution  each  State  in  the 
Union  may  elect  two  members,  and  which  may  consequently  con- 
sist of  two  members  from  each  State,  the  quorum  is  a  majority  of 
that  number,  whether  the  States  have  all  exercised  their  constitu- 
tional right  or  not.^  So,  in  the  second  branch  of  congress,  in  which, 
by  the  constitution,  the  whole  number  of  representatives  of  which 
the  house  may  consist  is  fixed  by  the  last  apportionment,  increased 
by  the  number  of  members  to  which  newly  admitted  States  may 
be  entitled,  the  quorum  is  a  majority  of  the  whole  number,  includ- 
ing the  number  to  which  such  new  States  may  be  entitled,  whether 
they  have  elected  members  or  not,  and  making  no  deductions  on 
account  of  vacant  districts.^ 

262.  Where  a  number  less  than  a  quorum  is  under  the  necessity 
of  acting,  as,  to  adjourn  from  day  to  day,  to  examine  and  decide 
upon  returns,  or  to  compel  the  attendance  of  absent  members,  the 
same  person  usually  assumes,  or  is  required  by  law,  to  preside,  by 
whom  the  prehminary  proceedings  are  afterwards  conducted,  until 
the  organization  takes  place ;  but  if  no  person  is  authorized  by  law 
or  by  custom  to  conduct  or  record  their  proceedings,  the  most  con- 
venient and  proper  mode  to  be  adopted  will  be  for  them  to  appoint 
suitable  temporary  officers  to  prepare  and  manage  their  business, 
but  for  every  order  and  recprd  to  be  authenticated  by  the  signature 
of  each  and  every  member  present. 

1  J.  of  H.  VI.  274,  395;  J.  of  H.  VII.  214.  «  J.  of  H.  80th  Cong.  Ist  Sets.  877;  Cong. 

«J.  of  S.  32d  Cong.  2d  Sess.  851;  Cong.     Globe,  XVUI.  821. 
Globe,  X.  1. 


Chap.  L]        assembling,  qualifying,  organization.  101 

263.  The  right  of  the  members  of  every  legislative  assembly  to 
have  the  presence  and  attendance  of  other  members,  in  order  to  a 
due  organization  of  the  assembly,  has  already  been  partly  treated 
of  in  the  preceding  section,  in  connection  with  the  nuinljcr  neces- 
sary to  constitute  a  quorum.  Very  nearly  akin  to  this  right,  is  that 
of  the  assembly  itself,  after  it  is  constituted,  to  have  the  attendance 
of  all  its  members,  for  the  transaction  of  business.  Where  the 
former  right  is  conferred  and  measures  are  provided  by  law  for  its 
enforcement,  those  measures  will,  of  course,  depend  upon  the  partic- 
ular law  by  which  they  are  created,  and  wiU  be  made  adequate  to 
the  end  in  view,  according  to  the  circumstances  and  condition  of 
each  assembly,  but  wiU  probably  bear  more  or  less  analogy  to  the 
means  resorted  to  by  the  assembly  itself,  after  its  constitution;  to 
enforce  the  attendance  of  its  members.  "..!:,  >.-  . 


Section  IV".  —  Compelling  Attendance  of  absent  Members. 

264.  Every  legislative  assembly,  when  duly  constituted,  has  power 
to  compel  the  attendance  of  its  members  ;  but,  until  so  constituted, 
it  has  no  such  powder,  as  it  has  itself  no  legal  existence ;  and  the 
right  of  the  members  who  are  present  for  the  purpose  of  organiza- 
tion to  compel  the  attendance  of  other  members  depends  wholly, 
as  has  been  seen,  upon  the  constitution  or  law  to  which  each 
assembly  is  subject.  The  right  of  a  legislative  assembly,  after  it  is 
regularly  constituted,  to  have  the  attendance  of  aU  its  members 
except  those  who  are  absent  on  leave,  or  in  the  service  of  the 
assembly,  and  to  enforce  it,  if  necessary,  is  one  of  its  most 
undoubted  and  important  privileges.  It  is  usually  enforced  by 
means  of  what  is  denominated  a  "call "  ^  of  the  assemblv,  \\'hich  is 
effected  in  the  following  manner  in  the  house  of  commons.  • 

265.  When  a  call  of  the  house  is  determined  upon,  the  first  step 
to  be  taken  is  to  pass  an  order  that  the  house  be  called  over  on  a 
future  day,  and,  for  this  purpose,  it  is  usual  to  appoint  a  day  which 
will  enable  the  members  to  attend  from  all  parts  of  the  country. 
This  order  is  always  accompanied  by  a  resolution  "  that  such 
members  as  shall  not  then  attend  be  sent  for  in  custody  of  the 
sergeant-at-arms."  On  the  day  appointed  for  the  call,  the  order  of 
the  day  for  that  purpose  is  read  in  the  usual  manner,  and  pro- 
ceeded with,  postponed,  or  discharged,  at  the  pleasure  of  the  house. 
If  proceeded  with,  the  names  of  the  members  are  called  over  in  the 

1  May,  188. 

9*  " 


102 


LEGISLATIVE  ASSEMBLIES. 


[Part  II. 


order  in  wliich  they  stand  on  the  roU  of  the  house,  and  those  who 
are  present  answer  to  their  names.  The  names  of  those  who  do 
not  answer  are  taken  down  by  the  clerk,  and  are  afterwards  called 
over  again.  K  they  appear  in  their  place  at  this  time,  or  in  the 
course  of  the  same  sitting,  it  is  usual  to  excuse  them  for  theu'  pre- 
vious default ;  ^  but  if  they  do  not  appear,  and  no  sufficient  excuse 
is  offered  for  them,  by  their  friends,  they  are  ordered  to  attend  on  a 
future  day.'^  It  is  also  customary  to  excuse  them  if  they  attend 
on  that  day,  or  if  a  reasonable  excuse  is  then  offered,  as  illness,'^  the 
LUness  and  death  of  near  relations,'*  public  service,'^  or  being  abroad.^ 
If  a  member  should  not  attend  at  this  time,  and  no  excuse  should 
be  offered,  he  wOl  be  liable  to  be  taken  into  the  custody  of  the 
s'ergeant-at%arn^^, .  and  Tjrought  to  the  house  in  that  manner.  In 
this  case,  he  will  be  liable  to  pay  the  fees  incident  to  such 
commitnrewt,  and  deteytion.  But  instead  of  committing  the 
defaulters,  the  house  sometimes  appoints  another  day  for  their 
attendance,"  or  discharges  the  order  for  their  commitment  alto- 
gether.^ In  earlier  times,  it  was  customary  for  the  house  to 
inflict  fines  upon  defaulters,  as  weU  as  other  punishment.^ 

266.  This  is  substantially  the  method  pursued  in  our  legisla- 
tive assemblies,  with  such  alterations  as  each  may  think  proper, 
the  elements  of  a  call  being  the  calling  of  the  members  at 
a  given  time ;  the  sending  for  defaulters  in  custody ;  and  the 
payment  of  fines  and  other  expenses  by  themj  in  order  to  effect 
their  discharge.  In  the  senate  of  the  United  States,  a  compul- 
sory attendance  of  the  members  has  not  been  found  necessary; 
and  nothing  analogous  to  a  call  of  the  house  has  ever  been 
resorted  to.  In  the  house  of  representatives,  on  the  contrary,  a 
call  of  the  house  is  of  almost  daily  occurrence ;  it  is  incidental 
to  •all  other  business,  and  takes  place,  without  the  passing  of 
any  previous  order  for  the  purpose,  or  the  giving  of  any  notice 
thereof  beforehand.  The  manner  in  which  it  is  there  practised, 
is  made  the  subject  of  a  special   rule.^*' 

267.  The  obligation  of  a  member  to  attend  the  service  of  the 
house,  at  all  times,  when  the  house  sits,  is,  of  course,  suspended 
for  a  time,  while  a  member  has  leave    of   absence;  which    may 


1  Comm.  Jour.  LXXX.  147. 
8  Coram.  Jour.  LXXXIV.  106. 
3  Comm.  Jour.  LXXX.  130. 

*  Comm.  Jour.  LXXX.  130. 
5  Comm.  Jour.  LXXX.  180. 

•  Comm  Jour.  XCL  278. 


T  Comm.  Jour.  XCI.  278. 

8  Comm.  Jour.  XC.  132. 

9  Comm.  Jour.  L  300,  862;  Same,  IT.  204 
Same,  IX.  75. 

10  Rules  62,  63,  64. 


Chap.  L]        assembling,  qualifying,  organization.  103 

be  obtained,  on  the  application  of  the  member  himself,  or  of 
any  one  in  his  behalf,  and,  sometimes,  on  the  report  of  a  com- 
mittee appointed  for  the  purpose.  The  same  effect  results  from 
absence  or  employment  in  the  service  of  the  house. 

268.  When  the  attendance  of  absent  members  is  compellable  by 
virtue  of  a  rule  of  the  asseml^ly,  it  is  usual  to  provide  that  the  pro- 
ceedings, for  this  purpose,  may  take  place,  when  a  number  of  the 
members  less  than  the  number  necessary  for  an  ordinary  quorum 
is  present;  and  that  number,  though  they  can  do  nothing  else, 
may,  of  course,  do  whatever  is  necessary  to  compel  the  attendance 
of  absent  members.  Thus,  in  the  house  of  representatives  of  con- 
gress, fifteen  members,  including  the  speaker,  if  there  is  one,  consti- 
tute a  quorum  for  this  purpose. 

269.  If  the  motion,  for  a  call  of  the  house,  passes  in  the  negative, 
a  second  motion,  for  the  same  purpose,  is  not  in  order,  until  after 
the  intervention  of  some  parliamentary  proceeding.^  K  it  passes  in 
the  affirmative,  the  order  may  be  rescinded  or  discharged,  or  the 
subject  may  be  reconsidered. 

270.  A  motion,  for  a  call  of  the  house,  cannot  be  suppressed  by 
a  motion  to  lie  on  the  table,  but  must  be  decided  specifically.-  All 
proceedings  under  a  call  are,  fi-om  its  very  nature,  suppressed,'^  and 
aU  members  under  arrest,  as  defaulters,  are  discharged,^  by  an 
adjournment  of  the  assembly,  whatever  may  be  its  effect  upon 
other  proceedings.  In  the  mean  time,  the  latter  are  excluded  from 
voting,  or  otherwise  participating  in  the  functions  of  members.^ 


Section  V.  —  Organization. 

271.  The  modes  of  organization,  though  substantially  the  same 
in  all,  are  yet  so  different  in  their  details,  in  the  several  States,  that 
it  wiU  be  impossible  to  do  any  thing  more  than  allude,  in  general 
terms,  to  some  of  their  distinctive  features.  In  most  of  the  States, 
there  are  certain  dilFerences  in  the  constitution  of  the  two  branches, 
composing  the  legislature,  which  lead  to  corresponding  differences 
in  the  mode  of  organization ;  in  some,  the  presiding  officer  of  the 
senate,  or  first  branch,  is  not  a  member  of  the  body,  but  is  elected 
to  some  other  oifice,  in  virtue  of  which  he  presides,  as  that  of  fieu« 

1  J.  of  H.  27th  Cong.  3d  Seas.  532;  J,  of  H.  »  Cong.  Globe,  XYIIL  60. 

28th  Cong.  2d  Sess.  1151;  Cong.  Globe,  XX.  *  Cong.  Globe,  XV.  51t>. 

177,  178.  *  Cong.  Globe,  XVIIL  928. 

a  Cong.  Globe,  XIU.  335. 


104  LEGISLATIVE   ASSEMBLIES.  [PaRT    II. 

tenant-governor,  or  vice-president,  and  is  ex  officio  president  of  the 
senate  ;  in  others,  a  certain  part  only,  as  one  thnd,  or  one  fourth,  of 
the  senate,  is  chosen  at  the  same  time  vtdth  every  new  election  of 
the  other  branch ;  while,  in  other  States,  both  these  peculiarities 
concur;  and,  in  all  these  cases,  the  mode  of  organization  varies 
accordingly. 

212.  The  senate  of  the  United  States,  though  it  constitutes  a 
branch  of  each  succeeding  congress,  and  its  sessions  are  held  peri- 
odically, and  correspond  with  those  of  the  house  of  representatives, 
is  a  continuous  and  permanent  body,  was  organized  under  the  con- 
stitution, when  that  instrument  first  went  into  operation  in  1789, 
and  has  continued  its  organization  ever  since.  Each  State  is  enti- 
tled to  be  represented  at  all  times  by  two  senators  in  the  senate  of 
the  United  States,  and  elects  them  by  the  legislature  of  each,  for 
the  term  of  six  years,  whenever  vacancies  occur,  by  lapse  of  time. 
Occasional  and  unforeseen  vacancies,  occurring  by  reason  of  death, 
resignation,  acceptance  of  a  disqualifying  office,  or  otherwise,  are 
filled,  for  the  residue  of  the  unexpired  term,  either  by  the  legislature, 
if  then  in  session,  or  by  appointment  of  the  executive.  Members, 
when  elected  or  appointed,  if  the  senate  is  then  sitting,  or  as  soon 
afterwards  as  it  sits,  present  their  credentials,  and  innnediately  take 
the  oath  of  office,  and  their  seats.  The  senate,  on  its  first  organiza- 
tion under  the  constitution,  was  divided,  by  lot,  into  three  classes, 
one  of  which  expires  with  each  congress  ;  and  the  same  arrangement 
being  repeated  on  the  accession  of  new  States,^  as  to  the  members 
therefrom,  one  third  of  the  members  of  the  senate  go  out  of  office 
every  two  years.  Hence,  at  the  commencement  of  each  congress, 
two  thirds  of  the  senate,  at  least,  which  is  more  than  a  quorum, 
are  then  in  office,  duly  qualified,  and  ready  to  proceed  to  business. 
The  presiding  officer  of  the  senate  being  the  vice-president  of  the 
United  States,  by  virtue  of  his  office,  and  in  his  absence,  one  of  the 
senators,  chosen  temporarily;  and  the  former  retiring  from  the 
senate,  towards  the  end  of  each  congress,  in  order  that  his  place 
may  be  supplied  by  the  choice  of  a  temporary  president ;  the  con- 
sequence is,  that  at  the  commencement  of  each  congress,  there  is  a 
presiding  officer  of  the  senate,  already  in  office,  ready  to  proceed  at 
once  with  his  duties  as  such,  and  without  any  further  authority 
fi*om  the  senate.  The  secretary,  and  other  officers  of  this  branch, 
remain  in  office  until  their  successors  are  chosen.     There  is  no  ne- 

1  The  members,  whose  terms  of  service  are     by  an  agreement  among  themselves.    Cong 
thus  in  question,  cannot  regulate  the  same,      Globe,  XV.  1. 


Chap.  L]  assembling,  qualifying,  organization.  105 

cessity,  therefore,  at  the  commencement  of  each  congress  for  an 
organization  of  the  senate  of  the  United  States  in  the  ordinary 
sense  of  that  term.  In  these  points,  the  senate  of  the  United 
States  bears  a  close  analogy  to  the  house  of  lords. 

273.  The  senate  'of  the  United  States  being  a  permanent  and 
continuing  body,  its  officers,  (except  its  presiding  officer,)  when  once 
chosen,  remained  in  office  until  vacancies  occurred  by  death,  resig- 
nation, or  removal  from  office,  which  were  equivalent,  of  course,  to 
appointment  for  life.  This  system  lasted  from  the  first  organization 
of  the  senate,  under  the  constitution,  until  January,  1824,  (18th 
congress,)  when,  upon  the  report  of  a  committee  to  whom  the  sub- 
ject was  referred,  it  was  resolved  that  the  secretary,  sergeant-at- 
arms,  door-keeper,  and  assistant  door-keeper,  of  the  senate,  should 
be  chosen  by  the  senate,  on  the  second  Monday  of  the  first  session 
of  the  nineteenth  and  every  succeeding  congress.^  But  this  rule,  it 
is  believed,  is  no  longer  in  force. 

274.  If  the  senate  of  the  United  States  has  some  points  of  resem- 
blance to  the  house  of  lords,  in  its  constitution,  the  proceedings  of 
the  house  of  representatives,  in  its  organization  at  the  commence- 
ment of  a  congress,  bears  no  less  resemblance  to  that  of  the  house 
of  commons  at  the  commencement  of  a  parliament.  The  clerk 
and  sergeant-at-arms,  attendant  upon  the  house  of  commons,  being 
patent  officers,  apjjointed  by  the  crown  for  life,  are  rightfully  present 
at  the  commencement  of  a  new  parliament,  in  the  discharge  of  their 
respective  duties,  and  the  former  initiates  the  necessary  steps  and 
proceeds  with  the  election  of  speaker,  as  the  proper  recording  officer 
of  the  commons.  The  election  and  approval  of  the  speaker  having 
taken  place,  in  the  manner  already  described,  the  speaker  and  other 
members  are  then  sworn,  and  the  business  of  the  house  proceeds. 
The  members  elect  of  the  house  of  representatives  in  congress  as- 
semble at  the  time  and  place  appointed,  in  pursuance  of  the  consti- 
tution, for  their  meeting,  and  are  there  met  by  the  clerk  of  the  last 
house  of  representatives,  who  has  prepared,  beforehand,  from  news- 
papers and  other  similar  sources,  a  list  of  the  members  returned. 
He  calls  over  the  house  by  this  list,  and  the  members  then  proceed 
to  the  election  of  a  speaker.  The  speaker  being  chosen,  the  oath 
is  first  administered  to  him  by  the  oldest  member  of  the  house 
present,  and  then  by  the  speaker  to  the  rest  of  the  members.  The 
clerk  is  aftervvards  chosen,  either  immediately,  or  at  the  expiration 
of  some  days.     In  the  mean  time,  the  clerk  of  the  last  house  is  suf- 

>  Journal  of  House,  18th  Cong.  1st  Sess.  130, 133 


106  LEGISLATIVE   ASSEMBLIES.  [PaRT   H 

fercd  to  act  as  clerk.  The  duty  of  the  latter  to  act  as  clerk  of  the 
new  house  and  initiate  the  steps  necessary  to  its  organization  is 
founded  merely  in  custom  and  usage  copied  doubtless  from  the 
practice  which  prevails  in  the  house  of  commons.  But  in  the  latter 
the  clerk  is  akeady  appointed ;  whereas,  in  the  house  of  representa- 
tives in  congress,  the  clerk  derives  his  appointment  only  from,  the 
last  house,  the  authority  of  which  expires  with  itself.  A  rule  of  the 
house  first  adopted  in  1791  ^  declares  that  the  clerk  "  shall  be 
deemed  to  continue  in  office  until  another  be  appointed,"  but  inas- 
much as  the  system  of  standing  orders  is  not  in  use  in  this  country, 
and  each  house  adopts  its  own  rules  and  orders,  at  the  commence- 
ment of  every  congress,  usually  taking  for  this  purpose  those  of  its 
predecessors  in  office,  there  is  commonly  an  interval  during  which 
the  clerk  is  elected,  when  the  rule  in  question  is  not  yet  adopted, 
and  when,  consequently,  it  is  not  in  force,  either  as  a  rule  of  the  old 
or  the  new  house.  The  practice  above  described,  though  sanctioned 
by  long  usage,  has  no  ground  either  of  constitution  or  law,  to  rest 
upon,  and  has  already  led  to  inconvenience.  Wherever  it  prevails, 
it  demands  the  regulation  of  the  legislative  power. 

275.  The  mode  of  organizing  a  legislative  assembly  may  doubt- 
less be  regulated,  as  it  has  been  in  Massachusetts,^  by  law,  whether 
express  authority  is  given  to  this  effect  or  not  by  constitution  ;  but 
it  has  been  deemed  so  important  in  Rhode  Island  and  Ohio,  that  in 
the  constitution  of  the  former  State  it  is  provided,  that  "  the  organi- 
zation of  the  two  houses  may  be  regulated  by  law,"  and  the  consti- 
tution of  the  latter  declares,  that  "  the  mode  of  organizing  the  house 
of  representatives,  at  the  commencement  of  each  regular  session, 
shall  be  prescribed  by  law."  In  the  constitution  of  Indiana,  it  is 
merely  provided,  that  if  a  quorum  of  either  house  is  in  attendance, 
and  the  members  present  fail  to  effect  an  organization  thereof  within 
five  days,  such  members  shall  receive  no  compensation  from  the  end 
of  said  five  days  until  an  organization  is  effected.  Whenever  the 
method  of  proceeding  is  thus  pointed  out,  it  must,  of  course,  be 
pursued.  The  constitution  of  Rhode  Island  also  provides  further 
that  "  The  senior  member  from  the  town  of  Newport,  if  any  be 
present,  shall  preside  in  the  organization  of  the  house." 

276.  The  three  essential  parts  of  an  organization  are  the  qualifi- 
cation of  the  members,  and  the  choice  of  the  presiding  and  record- 
ing officers.  In  some  of  our  legislative  bodies,  the  speaker  or  presi- 
dent is  first  chosen,  then  the  members  are  qualified,  and  lastly,  the 

1  Rule  21.  "  Act  of  1844,  c.  143. 


Chap.  L]         assembling,  qualifying,  organization.  107 

clerk  or  secretary  is  chosen  ;  in  others,  the  members  are  first  quali- 
fied, then  the  clerk  elected,  and  lastly  the  presiding  officer  ;  and,  in 
others,  again,  the  members  being  first  qualified,  the  election  of  the 
speaker  or  president  precedes  that  of  clerk. 

277.  When  either  branch  is  duly  organized  to  proceed  to  busi- 
ness, which  takes  place  when  the  members  returned  have  taken  the 
necessary  oaths,  and  have  chosen  their  presiding  ofilicer,  a  message 
is  then  to  be  sent  to  the  other  branch  to  inform  it  of  the  organiza- 
tion of  the  former ;  and  when  the  two  branches  are  organized,  they 
join  in  sending  a  message  to  the  executive,  to  inform  the  latter  that 
a  quorum  of  each  branch  has  assembled,  that  they  are  duly  organ- 
ized to  proceed  with  the  public  business,  and  are  ready  to  receive 
any  communication  he  may  make  to  them.  Each  branch  should, 
at  the  same  time,  or  by  separate  message,  inform  the  executive  of 
the  name  of  the  presiding  officer,  of  whom  they  make  choice.  The 
name  of  the  clerk  of  each  branch  when  chosen  should  be  notified  to 
the  other  and  to  the  executive.  This  is  done  afterw^ards,  whenever 
a  change,  either  temporary  or  permanent,  takes  place  in  these  officers. 
This  notification  is  not  a  mere  ceremony,  inasmuch  as  the  names 
of  these  important  officers  ought  not  to  be  left  to  find  their  way  to 
the  executive  by  chance  or  accident,  but  is  necessary  as  a  matter 
of  business,  in  order  that  the  latter  may  be  informed  to  whose  signa- 
ture as  attesting  officer  of  the  two  branches  credit  is  to  be  given. 

278.  Each  branch,  when  duly  organized,  and  without  waiting 
for  the  organization  of  the  other,  may  proceed  to  the  transaction  of 
any  business,  of  which  it  has  exclusive  jurisdiction,  by  itself,  and 
which  does  not  require  the  intervention  of  the  other ;  and,  therefore, 
until  both  are  organized  should  not  send  the  above-mentioned  no- 
tice to  the  executive.  In  the  mean  time,  either  branch,  as  soon  as 
it  is  duly  organized,  may  proceed,  for  example,  to  investigate  and 
settle  the  rights  of  confficting  claimants  to  seats.  So,  the  senate  of 
the  United  States,  which  in  various  respects  is  an  executive  council, 
as  well  as  one  branch  of  congress,  may  proceed  with  executive  busi- 
ness, and  may  notify  the  president  accordingly,  before  the  house  of 
representatives  has  completed  its  organization. 

279.  The  members  of  a  legislative  assembly,  who  are  duly  re- 
turned, having  taken  the  oaths  necessary  to  quaUfy  them  to  dis- 
charge the  functions  of  members,  are  all  precisely  equal  in  point  of 
right,  among  themselves,  and  have  an  equal  right  to  participate  in 
all  the  proceedings  of  the  assembly,  so  long  as  then-  election  is  not 
Bet  aside,  or  until,  in  some  other  way,  they  cease  to  be  members  of 
the  assembly. 


108  LEGISLATIVE    ASSEMBLIES.  [PaRT   II. 

280.  Members,  under  restraint  in  the  custody  of  the  sergeant-at- 
arms,  either  to  answer  a  complaint  against  them,  or  as  a  punish- 
ment,^ cannot,  of  course,  while  they  are  so  restrained,  participate  in 
the  proceedings  of  the  assembly.  Members  may  also  be  suspended 
by  way  of  punishment  from  their  functions  as  such,  either  in  whole 
or  in  part,  for  a  limited  time.  Suspension  is  included  in  the  right 
to  expel,  but  expulsion  puts  an  end  altogether  to  the  right  of  a 
member.  Members  under  restraint,  and  those  under  suspension, 
retain,  of  course,  the  privileges,  technically  so  called,  of  members. 

281.  Delegates  in  the  lower  house  of  congress,  from  the  territo- 
ries of  the  United  States,  stand  upon  a  somewhat  different  footing. 
They  are  so  called,  not  because  they  exercise  the  functions  merely 
of  agents,  but  probably  because  they  are  deprived  of  some  of  those 
of  members.  In  every  territory  of  the  United  States  where  a  tem- 
porary government  is  established,  which  has  conferred  upon  it  the 
right  to  send  a  delegate  to  congress,  it  is  provided  by  law  that  such 
delegate  shall  be  elected  every  second  year,  in  the  same  manner, 
and  for  the  same  term  of  two  years  for  which  members  of  the  house 
of  representatives  in  congress  are  elected ;  and  shall  be  entitled  to 
a  seat  in  that  house,  with  the  right  of  debating  therein,  but  not  of 
voting.^ 

282.  Under  these  provisions  of  law,  delegates  take  their  seats  as 
members,  and  then*  returns  and  elections  may  be  controverted  as 
such ;  ^  they  are  entitled  to  the  pay  *  and  privileges  of  members ; 
and  are  amenable  in  like  manner  to  the  house.  In  participating  in 
the  business  of  the  house,  a  delegate  is  allowed  to  present  petitions 
and  other  papers  of  a  like  nature ;  ^  to  be  of  a  comniittee  ^  and  to 
act  as  chairman,  and  make  reports  as  such ; "  to  offer  orders  or  reso- 
lutions ^  for  the  adoption  of  the  house  ;  and,  generally,  to  make  any 
motion,  either  original,  or  which  may  be  necessary  for  the  transac- 
tion of  other  business.^  But  his  right,  in  this  respect,  is  limited  to 
motions  which  do  not  involve  the  right  of  voting  on  his  part.  Thus, 
he  may  make  a  motion  for  the  previous  question,^^  but  he  cannot 
participate  in  seconding  such  a  motion  ;  because,  by  a  rule  of  the 
house  of  representatives  in  congress,  the  seconding  of  the  previous 
question  takes  place  only  by  the  votes  of  a  majority  of  the  members. 

1  Cong.  Globe,  XVIH.  928;  May,  265.  «  J.  of  H.  VI.  128. 

2  Act  of  March,  1817.  '  J.  of  H.  VII.  108,  112,  113. 

8  Cong.  Globe,  X.  83;  Cong.  Globe,  XL  1;  «  J.  of  H.  31st  Cong.  1st  Sess.  1216;  Cong. 

Cong.  Globe,  XXI.  1038.  Globe,  VIIL  541,  547. 

*3.  of  H.  XL  232,  239;  Cong.  Globe,  VIL  »  Reg.  of  Deb.  IlL  805,  806. 

102.  10  J.  of  H.  15th  Cong.  2d  Sess.  239 ;  Same, 

«  J.  o'"  H.  VIL  116.  30th  Cong.  2d  Sess.  103. 


Chap.  II.]  officers.  109 

So  he  cannot  make  a  motion  to  reconsider  a  vote,i  because,  by  a 
rule  of  the  house,  a  motion  to  reconsider  can  only  be  made  by  one 
who  voted  in  the  affirmative  of  the  question  which  it  is  proposed  to 
reconsider.  Delegates  are  members  in  every  respect,  except  that  of 
voting,-  but  they  are  not  counted  to  make  up  a  quorum  of  the 
house ;  and,  though  they  have  no  right  to  vote,  they  are  usually 
allowed  to  express  their  approbation  of  particular  measures,  by  an 
entry,  to  that  effect,  on  the  journal.^ 


CHAPTER    II. 

OF   THE   OFFICERS   OF  A  LEGISLATIVE   ASSEMBLY. 

283.  In  the  several  constitutions  of  the  United  States  and  of  aU 
the  States,  the  right  of  each  of  the  legislative  assemblies  therein 
established  to  choose  its  own  officers,  except,  in  some  cases,  its  pre- 
siding officer,  who  is  otherwise  designated,  is  expressly  secured,  in 
appropriate  language,  to  the  assemblies  themselves ;  leaving  it  to 
them  to  determine  what  officers  are  proper  and  convenient  or 
necessary  for  the  despatch  of  its  business  for  each  assembly  to  have ; 
and  these  officers  may  be  chosen  by  ballot  or  orally,  and  by  majori- 
ties or  pluralities,  according  to  usage,  or  the  rules  of  each  assembly. 
Unless  otherwise  specified,  the  election  or  appointment  is  for  the 
whole  period  of  the  legislative  existence  of  the  body  by  which  it 
takes  place,  or  until  the  death,  resignation,  or  removal  from  office 
of  any  one  of  the  officers  thereby  elected  or  appointed.  When  the 
presiding  and  the  recording  officer  are  chosen,  there  are  usually  no 
general  rules  in  force.  The  officers  of  a  legislative  assembly,  if 
there  is  no  rule  to  the  contrary,  may  be  appointed  by  resolution.-* 
But,  in  whatever  way  the  officers  of  a  legislative  assembly  may  be 
appointed,  they  may  be  removed  by  a  simple  resolution  to  that 
effect.^ 

1  J.  of  H.  31st  Cong.  1st  Sess.  1280;  Cong.  28th  Cong.  2d  Sess.  223  to  233;  Same,  29th 

Globe,  XII.  274 ;  Cong.  Globe,  XXI.  1552.  Cong.   1st  Sess.   101 ;  Same,  30th  Cong.  1st 

»  J.  of  H.  31st  Cong.  1st  Sess.  1280.    See  Sess.  923;  Cong.  Globe,  XV.  12;  Cong.  Globe, 

also  Cong.  Globe,  VIII.  547.  XVIII.  855. 

«  J.  of  H.  VIII.  470,  471.  8  J.  of  H.  IX.  682.     See  also  J.  of  H.  Slst 

*J.  of  H.  21st  Cong.  Ist  Sess.  9;  Same,  Cong.  1st  Sess.  712,  713,  716. 

10 


110  LEGISLATIVE  ASSEMBLIES.  [PaRT   I\, 

284.  The  principal  officers  necessary  to  enable  a  legislative  as- 
sembly to  perform  its  various  functions  are  three,  namely ;  a  pre- 
siding officer,  called  the  speaker  or  president ;  a  recording  officer, 
denominated  the  secretary  or  clerk ;  and  an  executive  officer,  some- 
times known  as  the  messenger,  but  more  commonly,  the  sergeant- 
at-arms.  Besides  these,  there  are  officers  of  a  less  essential  charac- 
ter, such  as  the  chaplain  and  printer,  and  others  of  a  subordinate 
description,  as  the  assistant  clerks,  engrossing  clerks,  committee 
clerks,  stenographers,  door-keepers,  and  messengers  of  the  sergeant- 
at-arms.  All  these  officers,  with  the  exception  of  the  subordinates, 
who  are  usually  appointed  by  their  principals,  and,  in  some  States, 
the  presiding  officer  of  the  senate,  who  is  othen^dse  designated,^  are 
chosen  by  the  assembhes  themselves,  in  virtue  of  constitutional  pro- 
visions. 

Section  I.     Presiding  Officer. 

285.  In  parHament,  the  presiding  officer  of  the  lords  is  the  lord 
chancellor,  who,  unless  he  is  at  iA\e  same  time  a  peer  of  the  realm, 
is  not  a  member  of  the  house  and  has  no  right  to  speak  or  vote. 
In  the  commons,  the  presiding  officer  is  always  a  member,  who, 
being  duly  elected  to  the  office  by  the  house,  is  denominated  the 
speaker,  in  Latin,  prolocutor.  The  appellation  of  speaker  is  prob- 
ably derived  from  the  principal  function  exercised  by  this  impor- 
tant officer,  in  the  earliest,  periods  of  parliamentary  history,  and 
perhaps  at  the  time  when  the  whole  parliament  sat  together.  The 
chief  business  of  the  speaker  originally  was  to  express  the  will  of 
the  commons,  and  to  speak  for  them,  in  all  the  proceedings  of  the 
parliament  in  which  they  were  allowed  or  required  to  participate ; 
the  ascertaining  of  what  their  will  was  being  doubtless,  at  that 
period,  attended  with  little  or  no  difficulty,  and  therefore  a  very 
subordinate  and  unimportant  branch  of  the  speaker's  duty.  In 
modern  times,  though  the  speaker  still  remains  in  some  sense  the 
formal  mouth-piece  of  the  house,  the  duty  of  presiding  over  its 
deliberations,  and  ascertaining  its  will,  has  become  the  principal 
and  much  the  most  important  of  all  his  functions. 

286.  In  the  legislatures  of  the  United  States,  the  presiding 
officer  of  the  lower  or  popular  branch  is  called  the  speaker ;  and,  in 
some  of  them,'-^  the  same  appellation  is  given  to  the  presiding  officer 

1  Where  the  presiding  officer,  being  desig-     election  of  the  members  of  the  assembly  over 
nated  in  this  way,  is  absent,  or  his  place  is      which  lie  presides. 

otherwise  vacated,  the  vacancy  is  filled  by         *  Pennsylvania,  Delaware,  North  CaroHna, 

Tfinnessee,  Illinois,  Kentucky. 


C^AP.  IL]  OFHCBRS,  111 

of  the  other  branch ;  but,  in  the  greater  number,  the  title  of  the 
latter  is  the  president.  K  the  origin  of  the  word  speaker,  which 
has  just  been  given,  is  correct,  the  term  president  is  doubtless  the 
most  appropriate  of  the  two  to  designate  the  presiding  ofTicer  of  a 
deliberative  assembly  of  any  kind. 

287.  The  word  chairman  is  frequently  used  to  designate  the 
presiding  officer,  but,  not,  of  any  legislative  assembly;  being  more 
commonly  applied  to  committees,  and  other  assemblies  of  a  tem- 
porary character.  This  term  seems  to  derive  its  origin  from  ihe 
circumstance  that  in  early  times  the  presiding  officer  alone  was 
furnished  with  a  chair ;  because  he  must  necessarily  sit  by  himself, 
apart  from  the  others,  who  were  provided  only  with  benches. 
Hence  in  modern  times  the  presiding  officer  frequently  denomi- 
nates himself,  and  is  spoken  of  by  others,  as  the  chair.  The  word 
moderator  is  sometimes  used  to  denote  a  presiding  officer ;  origi- 
nally it  applied  to  one  who  presided  in  a  disputation,  for  the 
purpose  of  restraining  the  contending  parties  from  indecency,  and 
confining  them  to  the  question.  In  modern  times,  with  the  excep- 
tion of  town  meetings  in  Massachusetts,  which  are  presided  over  by 
a  moderator,  that  term  is  more  commonly  used  to  denote  the  pre- 
siding officer  of  an  ecclesiastical  tribunal  or  council ;  not  perhaps, 
because  the  proceedings  of  such  a  body,  more  than  those  of  any 
other,  require  an  application  of  the  peculiar  functions  of  a  moder- 
ator, but,  probably,  because  it  was  the_  business  of  such  assemblies 
to  settle  disputed  points,  by  means  of  forensic  argument,  rather 
than  to  deliberate  upon  subjects  or  measures  generally. 

288.  The  functions  of  the  speaker  of  the  house  of  commons  are 
somewhat  different  from  those  of  the  lord  chancellor,  as  presiding 
officer  of  the  house  of  lords.  The  latter,  though  he  presides  in  a 
deliberative  assembly,  is  invested  with  no  more  authority  for  the 
preservation  of  order  than  any  other  member ;  and,  if  not  himself  a 
member,  his  office  is  limited  to  the  putting  of  questions,  and  other 
formal  proceedings.  The  lord  chancellor,  if  he  is  a  peer,  may 
address  the  house,  and  participate  in  the  debates  as  a  member ;  but, 
as  his  opinion  is  liable  to  be  questioned,  like  that  of  any  other  peer, 
he  does  not  often  speak  to  points  of  order.  If  a  peer,  he  votes  with 
the  other  members ;  if  not,  he  does  not  vote  at  all.  There  is  no 
casting  vote  in  the  lords ;  if  the  house  is  equally  divided,  the 
motion  fails,  and  a  record  thereof  is  accordingly  made  on  the 
journal,  N\ath  the  words  accompanying,  that  in  such  cases,  semper 
prcesumitur })ro  Jieg-ante. 

289.  It  was  probably  upon  the  ground  of  some  supposed  analogy 


112  LEGISLATIVE  ASSEMBLIES.  [PaRT    IL 

betu^een  the  functions  of  the  vice-president  of  the  United  States  as 
president  of  the  senate,  and  those  of  the  lord  chancellor,  as  the 
presiding  officer  of  the  house  of  lords,  that  Mr.  Calhoun,  when  vice- 
president,  in  1826,  decided,  in  effect,  that,  as  president  of  the 
senate,  he  had  no  power  of  preserving  order,  or  of  calling  any 
member  to  order,  for  words  spoken  in  the  course  of  debate,  upon  his 
own  authority,  but  only  so  far,  as  it  was  given  and  regulated  by 
the  rules  of  the  senate.  This  decision  occasioned  great  surprise, 
and  gave  rise,  at  the  time,  to  some  severe  remarks.  As  a  practical 
question,  it  was  in  part  settled  in  1828,  by  the  adoption  of  a  rule, 
that  "every  question  of  order  shaU  be  decided  by  the  president, 
without  debate,  subject  to  appeal  to  the  senate."  As  a  question 
of  constitutional  right  and  duty,  it  is  difficult  to  perceive  any  reason 
for  doubting,  when  the  constitution  declares  expressly,  that  the 
vice-president  of  the  United  States  shall  be  president  of  the 
senate,  that  it  intended  to  invest  him  with  the  ordinary  powers  of 
a  presiding  officer. 

290.  The  functions  of  the  speaker  of  the  house  of  commons,  are 
thus  summed  up  by  a  late  English  writer  :  ^  — "  The  duties  of  the 
speaker  of  the  house  of  commons  are  as  various  as  they  are  impor- 
tant. He  presides  over  the  deliberations  of  the  house,  and  enforces 
the  observance  of  all  rules  for  preserving  order  in  its  proceedings ; 
he  puts  aU  questions,  and  declares  the  determination  of  the  house. 
As  '  mouth  of  the  house,'  he  communicates  its  resolutions  to 
others,  conveys  its  thanks,  and  expresses  its  censure,  its  reprimands, 
or  its  admonitions.  He  issues  warrants  to  execute  the  orders  of  the 
house  for  the  commitment  of  offenders,  for  the  issue  of  writs,  for 
the  attendance  of  witnesses,  for  the  bringing  up  prisoners  in  cus- 
tody, and,  in  short,  for  giving  effect  to  all  orders  which  require  the 
sanction  of  a  legal  form.  He  is,  in  fact,  the  representative  of  the 
house  itself,  in  its  powers,  its  proceedings,  and  its  dignity.  When 
he  enters  or  leaves  the  house,  the  mace  is  borne  before  him  by  the 
sergeant-at-arms ;  when  he  is  in  the  chair,  it  is  laid  upon  the  table ; 
and,  at  all  other  times,  when  the  mace  is  not  in  the  house,  it  is 
with  the  speaker,  and  accompanies  him  upon  all  state  occasions." 
The  duties  of  the  presiding  officers  of  our  legislative  assemblies  are 
substantially  the  same  as  here  described.  In  some  points  differ- 
ences will  be  found  to  exist,  which  will  be  noticed  hereafter.^ 

291.  The  duties  of  the  presiding  officer  of  a  legislative  assembly, 

*  May,  195.  officer,  in  connection  with  the  several  topics 

'^  We  shall  have  occasion  to  refer  more  par-     to  which  they  relate, 
ticnlarly  to  the  various  duties  of  a  presiding 


Chap.  II.]  officers.  llJi 

are  manifold  and  various,  corresponding  in  some  sort  with  the  dif. 
ferent  functions  in  which  the  assembly  may  be  engaged. 

In  its  ordinary  capacity  of  a  legislative  body,  his  duties  are :  — 

To  open  the  sitting  of  each  day,  by  taking  the  chair  and  calling* 
the  assembly  to  order  : 

To  announce  the  business  before  the  assembly,  in  the  order  in 
which  it  is  to  be  acted  upon : 

To  receive  and  submit  in  the  proper  manner  all  motions  and 
propositions  presented  by  the  members  : 

To  put  to  vote  all  questions  properly  submitted  and  announce 

the  result :  ^ 

To  restrain  the  members  when  engaged  in  debate  within  the 

rules  of  order : 

To  enforce  the  observance  of  order  and  decorum  among  the 

members : 

To  receive  messages  and  other  communications  from  other 
branches  of  the  government,  and  announce  them  to  the  assem- 
bly: 

To  authenticate  by  his  signature,  when  necessary,  all  the  acts 

orders,  and  proceedings,  of  the  assembly : 

To  inform  the  assembly,  when  necessary,  or  when  referred  to  for 
the  purpose,  in  a  point  of  order  or  practice  :  ^ 

To  name  the  members  (where  this  is  niade  by  rule  a  part  of  his 
duty)  who  are  to  serve  on  committees : 

To  decide,  in  the  first  instance,  and  subject  to  the  revision  of 
the  house,  all  questions  of  order,  that  may  arise,  or  be  submitted 
for  his  decision : 

To  issue  his  warrant,  when  directed,  for  the  execution  of  the 
orders  of  the  assembly,  in  the  arrest  of  offenders,  or  the  summoning 
of  witnesses. 

292.  Where  a  legislative  body  is  engaged  in  its  judicial  func- 
tions, it  is  the  duty  of  the  presiding  oihcer  to  conduct  the  proceed- 
ings, to  put  questions  to  parties  and  A\-itnesses,  and  to  pronounce 
the  sentence  or  judgment. 

293.  When  the  assembly  is  engaged  in  any  of  its  high  adminis- 
trative functions,  or  in  matters  of  state  or  ceremony,  as  for  example, 
when  a  member  or  other  person  is  to  be  reprimanded  or  thanked, 
the  presiding  officer  is  the  mouth-piece  and  organ  of  the  body.^ 

1  In  the  house  of  commons  the  speaker  puts  chair,  when  questions  are  under  discussion  b 

all  questions,  even  those  which  concern  him  which  he  is  personally  interested, 

personally.     See  Comm.  Jour.  XXXII.  708;  2  Hatsell,  II.  243. 

and  Hans.  (1)  X.  1170.    In  this  country,  he,  »  HatseU,  II.  247. 
generally,  calls  some  other  member  to  the 

10* 


114  LEGISLATIVE  ASSEMBLIES.  [PaRT    IL 

294.  The  presiding  officer,  though  entitled  on  all  occasions  to  be 
treated  with  the  greatest  attention  and  respect  by  the  individual 
members,  because  the  power,  and  dignity,  and  honor  of  the  assem- 
bly, are  officially  embodied  in  his  person,  is  yet  but  the  servant  of 
the  house,  to  declare  its  will  and  to  obey  implicitly  all  its  com- 
mands.^ He  is  selected  and  appointed  to  the  trust  of  presiding 
officer,  in  the  confidence,  and  upon  the  supposition,  of  the  con- 
formity of  his  will  to  that  of  the  assembly*  In  all  his  official  acts 
and  proceedings,  therefore,  he  represents  and  stands  for  the  assem- 
bly ;  and  his  will  is  taken  for  that  of  the  whole  body,  compendiously 
expressed  through  him,  and  by  his  mouth,  instead  of  being  col- 
lected from  the  individual  wills  of  aU  the  members.^ 

295.  In  order  to  the  convenient  and  proper  discharge  of  these 
duties,  they  must  be  confided  to  a  single  person  ;  for,  if  there  were 
two,  upon  any  difference  of  opinion,  nothing  could  be  done  without 
appeahng  to  the  assembly ;  and,  if  there  were  more  than  two,  or, 
in  other  words,  if  the  duties  of  presiding  were  placed  in  the  hands 
of  a  committee,  the  debating  and  deciding  in  this  little  assembly 
would  only  have  the  effect  to  prolong  the  proceedings  to  an  incon- 
venient length.'^ 

296.  The  office  must  also  be  permanent,  not  only  to  avoid  the 
inconvenience  of  frequent  elections,  but  because  its  duties  wiU  be 
more  likely  to  be  well  performed  by  a  peraianent  than  by  a  tempo- 
rary officer.  The  former  wiU  have  more  experience,  and  a  better 
knowledge  of  the  members ;  will  be  more  familiar  with  the  course 
of  business ;  and  will  feel  a  stronger  interest  to  do  it  properly.  A 
permanent  president,  liable  to  be  deprived  of  his  office  only  in  con- 
sequence of  an  unfaithful  or  inadequate  discharge  of  its  duties,  will 
be  thereby  the  more  strongly  induced  to  perform  them  weU  ;  a  con- 
sideration, which  can  have  no  effect  upon  one  elected  for  a  certain 
period,  who,  whether  he  acquits  himself  weU  or  ill  in  his  office,  must, 
at  all  events,  give  it  up  at  the  appointed  time.^  The  speaker  of  the 
house  of  commons  accordingly  holds  his  office  during  the  whole 
term  of  the  parliament  to  which  he  is  elected  a  member ;  and,  in  this 

1  "  This  duty,"  says  Hatsell,  "  is  extremely  eyes  to  see,  nor  tongue  to  speak,  in  this  place, 

well  expressed,  in  a  very  few  words,  by  Mr.  but  as  the  house  is  pleased  to  direct  me;  whose 

Speaker  Lenthall;  who,  when  that  ill-advised  servant  I  am  here;  and  humbly  beg  yourmaj- 

monarch,  Charles  I.,  came  into  the  house  of  esty's  pardon,  that  I  cannot  give  any  other 

commons,   and  having  taken    the  speaker's  answer  than   this,  to  what  your  majesty  ia 

chair,  asked  him,  '  Whether  any  of  the  five  pleased  to  demand  of  me.'  "    Hatsell,  II.  242 

members  that  he  came  to  apprehend  were  in  ^  Dumont,  78. 

the  house?  whether  he  saw  any  of  them?  and  '  Dumont,  77. 

where  they  were?'  —  made  this  answer: —  *  Dumont,  77. 
'  May  it  please  your  majesty,  I  have  neither 


Chap.  IL]  officers.  115 

country,  the  presiding  officers  of  our  legislative  assemblies  hold 
their  offices,  to  the  end  of  the  term,  for  which  their  respective  legis- 
latures have  been  elected;  notwithstanding  any  adjournment,  or 
prorogation,  that  may  take  place  in  the  mean  time. 

297.  It  is  essential,  also,  to  the  satisfactory  discharge  of  the 
duties  of  a  presiding  officer,  that  he  should  possess  the  confidence 
of  the  body  over  which  he  presides,  in  the  highest  practicable  de- 
gree. It  is  apparently  for  the  purpose  of  securing  this  necessary 
confidence,  that  the  presiding  officer  is  required  to  be  chosen  by  the 
assembly  itself,  and  by  an  absolute  majority  of  votes;  that  he  is 
removable  by  the  assembly  at  its  pleasure ;  and  that  he  is  excluded 
from  all  participation  in  the  proceedings  as  a  member.  Each  of 
these  particulars  requires  to  be  briefly  considered. 

298.  I.  In  regard  to  the  election  by  the  assembly  itself  of  its 
presiding  officer,  the  ride  above  stated  can  hardly  be  considered  as 
admitting  of  an  exception,  even  in  those  legislative  bodies,  in  which, 
for  special  reasons,  the  presiding  officer  is  designated  by  the  consti- 
tution, instead  of  being  chosen  by  the  members ;  inasmuch,  as  in 
these  cases,  the  presiding  officer  is  chosen  by  the  same  authority  by 
which  the  members  are  chosen.  The  constitution  of  the  United 
States  and  the  constitutions  of  fifteen  of  the  States  designate  the 
presiding  officer  of  the  first  branch  of  the  legislature  in  this  manner, 
the  first  declaring  that  the  vice-president  of  the  United  States  shall 
be  president  of  the  senate ;  the  others  providing  that  the  fieutenant- 
governor  elected  in  each,  respectively,  shall  exercise  the  functions 
of  presiding  oflicer  of  the  first  branch  of  the  legislature  therein  ;  and 
all  conferring  authority  upon  the  bodies  thus  presided  over  to  elect 
one  of  Iheir  own  members  as  temporary  presiding  officer  in  place 
of  the  officer  appointed,  in  case  of  his  absence  or  disability.  The 
States,  in  which  the  lieutenant-governor  thus  acts,  in  virtue  of  Ms 
office,  as  presicfing  officer  of  one  branch  of  the  legislatiu-e,  are  those 
of  Vermont,  Rhode  Island,  (in  this  State  the  governor  is  the  pre- 
siding officer  of  the  senate,  if  present,)  Connecticut,  New  York, 
Virginia,  Louisiana,  Kentucky,  Ohio,  Indiana,  Ilfinois,  Missouri, 
Texas,  Wisconsin,  and  California.  In  the  constitution  of  the  United 
States  and  in  those  of  all  the  States  above  named,  except  that  of 
Virginia,  (in  which  it  is  declared,  that  the  fieutenant-governor  shall 
preside  in  the  senate  but  shall  have  no  vote  therein,)  it  is  provided, 
that  the  presiding  officer  thereby  designated  shall  give  the  casting 
vote,  when  the  body  over  which  he  presides  is  equally  divided ;  in 
the  constitutions  of  the  United  States  and  in  those  of  Vermont, 
Rhode  Island,  New  York,  Louisiana,  Ohio,  Wisconsin,  and  CaU- 


116  LEGISLATIVE    ASSEMBLIES.  [PaRT   II. 

fornia,  by  the  use  both  of  affirmative  and  negative  terms ;  and  in 
the  other  constitutions  above  mentioned  by  the  use  of  affirmative 
terms  only.  This  right  of  the  lieutenant-governor,  is  extended,  in 
the  State  of  Rhode  Island,  to  what  is  there  called  a  grand  com- 
mittee, and  in  Missouri  to  a  jomt  vote  of  the  two  houses.  In  Con- 
necticut and  Missouri,  the  lieutenant-governor  is  permitted  to 
debate,  and  in  the  States  of  Kentucky,  Indiana,  Illinois,  and  Texas, 
to  debate  and  vote,  when  the  body  over  Avhich  he  presides  is  in 
committee  of  the  whole.  In  the  constitution  of  Vermont,  the  pro- 
vision is  general,  that  the  president  of  the  senate  (whoever  may  be 
exercising  the  duties  of  that  office)  shall  have  a  casting  vote  therein, 
but  no  other.  In  regard  to  the  number  of  votes  necessary  to  elect, 
it  seems  to  be  a  rule  established  at  least  by  practice  and  usage,  that 
nothing  short  of  an  absolute  majority  will  be  sufficient,  even  in 
those  States  Avhere  the  election  of  other  officers  takes  place  by  a 
plurality.  In  the  house  of  commons,  where  several  persons  are 
proposed  as  candidates  for  the  office  of  speaker,  an  election  is  made 
by  putting  a  question  in  the  ordinary  manner  on  each  name  pro- 
posed, separately,  instead  of  allowing  all  the  candidates  to  be  bal- 
loted for  at  the  same  time,  and  awarding  the  office  to  him  who 
receives  the  greatest  number  of  votes.  In  this  mode  of  proceeding, 
no  one  can  be  elected  without  receiving  a  majority  of  aU  the  votes; 
though,  in  aU  other  elections,  even  of  committees  of  the  house 
chosen  by  ballot,  a  plurality  would  be  sufficient.  The  same  prac- 
tice is  understood  to  prevail  in  this  country,  and  as  well  in  the 
assemblies  of  those  States,  in  which  elections  ordinarily  take  place 
by  pluralities,  as  in  those  in  which  an  absolute  majority  is  requisite, 
and  without  regard  to  the  form  of  election,  whether  by  oral  suffrage 
or  by  baUot.i  Whether  this  practice  had  its  origin  from  accident, 
or  design,  is  perhaps  doubtful ;  its  effect  undoubtedly  has  been  to 
give  the  presiding  officer  a  stronger  hold  upon  the  confidence  of  the 


1  In  the  house  of  representatives  in  con-  memorable  contest  began  on  the  third  of  De- 
gress, the  speaker  has  always  been  elected,  cember,  1849,  and  ended  on  the  twenty-second, 
without  any  previous  order  of  the  house,  or  after  sixty-three  ballotings.  Previous  to  the 
provision  of  law,  to  that  effect,  but  simply  in  last  balloting,  a  resolution  was  adopted,  that 
virtue  of  a  resolution  of  the  house,  to  proceed  at  the  next  trial,  in  order  to  insure  an  organi- 
to  the  election  of  a  speaker.  On  one  occasion,  zation,  a  plurality  should  be  sufficient  to  elect, 
and  the  only  one,  it  is  believed,  that  ever  took  At  the  last  balloting  Mr.  Cobb  received  102 
place,  this  principle  was  departed  from;  the  votes  out  of  222,  and  was  accordingly  declared 
election  of  speaker  of  the  house  in  the  thirty-  elected.  The  vote  had  previously  stood  100 
first  oongi-ess,  contested  principally  between  for  Mr.  Winthrop,  102  for  Mr.  Cobb,  and  for 
the  Hon.  Robert  C.  Winthrop,  of  Massactiu-  ■  various  other  persons  22.  See  the  Cong 
setts,  who  had  been  speaker  of  the  last  house,  Globe,  volume  XXI. 
and  the  Hon.  Howell  Cobb,  of  Georgia.    That 


Chap.  II.]  officers.  117 

assembly,  than  he  would  have,  if  elected  by  a  bare  plurality.  If  a 
plurality  alone  was  sufficient  to  elect,  it  might  and  probably  would 
happen,  frequently,  that  an  election  would  be  made  by  a  number 
less  than  a  majority;  in  which  case,  the  person  elected  might  be 
instantly  removed  by  those  who  were  opposed  to  his  election,  who 
would  of  course  constitute  a  majority  of  the  whole. 

299.  II.  The  presiding  officer,  .being  freely  elected  by  the  mem- 
bers, by  reason  of  the  confidence  which  they  have  in  him,  is  renaov- 
able  by  them,  at  their  pleasure,  in  the  same  manner,  whenever  he 
becomes  permanently  unable,  by  reason  of  sickness,  or  otherwise,  to 
discharge  the  duties  of  his  place,  and  does  not  resign  his  office ;  or, 
whenever  he  has,  in  any  manner,  or  for  any  cause,  forfeited  or  lost 
the  confidence  upon  the  strength  of  which  he  was  elected.^ 

300.  III.  The  duties  of  a  presiding  officer  are  of  such  a  nature, 
and  require  him  to  possess  so  entirely  and  exclusively  the  confidence 
of  the  assembly,  that,  with  certain  exceptions,  which  will  presently 
be  mentioned,  he  is  not  allowed  to  exercise  any  other  functions 
than  those  which  properly  belong  to  his  office ;  that  is  to  say,  he  is 
excluded  from  submitting  propositions  to  the  assembly,  from  par- 
ticipating in  its  deliberations,  and  from  voting.  The  advantages 
of  these  restrictions  are  supposed  to  be  threefold ;  first,  the  presiding 
officer  is  thus  left  to  devote  himself  exclusively  to  his  official  duties, 
and  to  the  cultivation  of  the  peculiar  talents  which  they  require ; 
which  would  hardly  be  the  case,  if  he  were  called  to  take  the  part 
and  sustain  the  reputation  of  a  member,  and  were  influenced  by  any 
other  ambition  than  that  of  performing  well  the  duties  of  his  office ; 
second,  he  is  thereby  secured  against  the  seductions  of  partiality, 
and  is  placed  beyond  the  reach  even  of  suspicion,  by  being  excluded 
from  engaging  as  a  party,  in  debates  and  proceedings,  in  which  it 
may  become  his  duty  officially  to  act  as  judge ;  and,  third,  he  is 
relieved  from  the  danger  of  weakening  his  personal  consideration, 
by  failing  in  the  measures  he  undertakes,  or  by  giving  cause  of 
ofl'ence  to  his  associates,  to  which  a  participation  in  the  proceed- 
ings as  a  member  would  inevitably  expose  him. 

301.  Certain  exceptions  to  this  rule  result  from  necessity  or 
convenience,  namely  ;  the  presiding  officer  may  be  of  a  committee,^ 
may  submit  or  rather  suggest  motions  and  propositions,  relating  to 
matters  of  form,  the  proper  course  of  proceeding,  or  the  order  of 

1  .leflerson's   Manual,   §  9;   Grey,   II.    ISO;  might  substitute  another  to  perform  its  duties 

Slime,  V.  134.  while  he  makes  the  report ;  or  the  latter  might 

-  Comin.  Deb.  YI.  297.    In  this  case,  as  it  be  made  by  some  other  member  of  the  coin- 
might  not  be  convenient  for  the  speaker  him-  mittee. 
self  to  make  the  report  while  in  the  chair,  he 


118  LEGISLATIVE   ASSEMBLIES.  [PaRT    I^ 

business ;  he  may  engage  in  the  debate  by  special  leave  of  the 
house,  or  whei;  the  assembly  is  in  committee  of  the  whole,  or  when 
a  question  of  order  is  under  consideration ;  and,  when  the  assembly 
is  equally  divided  on  any  question,  it  is  not  only  the  right,  but  also 
the  duty,  of  the  presiding  officer  to  give  a  casting  vote.^ 

30:^.  The  exceptions,  stated  in  the  preceeding  paragi-aph,  except 
the  last,  require  no  further  notice ;  but  in  view  of  the  constitu- 
tional provision  above  mentioned,  and  that  the  subject  may  be 
understood,  it  wiU  be  necessary  to  investigate,  at  some  length,  the 
right  and  duty  of  the  presiding  officer  of  a  legislative  body  to  vote 
in  the  proceedings  thereof.  At  the  time  when  our  colonial  legisla- 
tures were  founded,  and  the  method  of  their  proceedings  was 
established,  the  only  examples  of  parliamentary  form  which  they 
could  foUow  were  to  be  found  in  the  practice  of  the  two  houses  of 
the  British  parliament.  The  peers  sat  together  as  a  deliberative 
body,  and  a  branch  of  the  national  legislature,  but  they  were  not  a 
representative  body,  each  of  them  sat  and  voted  in  his  own  indi- 
vidual right.  The  lord  chancellor  attended  in  virtue  of  his  office 
with  other  great  officers  of  the  crown,  in  the  house  of  peers,  and 
collected  their  sense  upon  aU  questions  that  came  before  them,  but 
he  could  scarcely  be  said  to  preside  in  the  house  of  peers ;  and  he 
did  not  vote  at  all,  unless  he  happened  to  be  a  peer,  which  was  not 
always  the  case,  and  as  such,  entitled  to  participate  in  their  pro- 
ceedings in  his  own  individual  right;  in  which  case  he  was  a 
member  of  the  body,  and  voted  with  the  others.  In  this  mode,  it 
sometimes  happened,  that  when  all  the  votes  had  been  given  on 
both  sides  of  a  question,  the  sides  were  equal.  In  this  case,  as  a 
majority  could  not  be  reckoned  on  either  side,  the  affirmative  of  the 
question  could  not  be  said  to  prevail,  but  inasmuch  as  the  votes 
given  for  the  negative  were  sufficient  in  number  to  neutralize  the 
votes  given  on  the  other  side,  and  to  prevent  them  from  prevailing, 
such  question  was  properly  held  to  be  decided  in  the  negative.  But 
in  the  house  of  commons,  the  other  branch  of  parliament,  the  prac- 
tice was  not  altogether  the  same.  The  house  of  commons  was  a 
representative  body  ;  its  members  did  not  sit  and  vote  in  their  own 
right,  but  in  that  of  their  constituencies  ;  their  presiding  officer  was 
one  of  their  own  members  chosen  by  themselves,  and  not  appointed, 
but  only  approved,  by  the  crown ;  and  he  did  not  vote  at  all,  unless 
the  two  sides  were  equal,  in  number,  in  which  case  he  gave  what 
was  called  the  casting  vote.  One  of  the  earliest  writers  on  parlia- 
mentary law  thus  states  the  rule,^ — "  Upon  the   division,  if  the 

1  HatseU,  II.  244,  245.  «  Scobel,  27. 


Chap.  IL]  officers.  119 

members  appear  to  be  equal,  then  the  speaker  is  to  declare  his  vote, 
whether  he  be  a  yea  or  wo,  which,  in  this  case,  is  the  casting  voice ; 
but,  in  other  cases,  the  speaker  gives  no  vote."  Such  was  the 
practice  of  the  two  houses  of  the  British  parliament,  when  our 
ancestors  emigrated,  and  established  their  colonial  and  provincial 
assemblies,  in  the  proceedings  and  practice  of  which  were  laid  the 
foundations  of  our  present  system  of  parliamentary  practice ;  and 
such  has  continued  to  be  and  now  is  the  practice  in  that  body. 

303.    The  casting  vote  is  so  called,  not  because  on  an  equal 
division  the  question  is  decided  by  it,  for,  in  fact,  as  we  have  seen, 
an  equal  division  upon  a  question  is  a  decision  of  it  in  the  nega- 
tive, but  the  question  is  then  in  such  a  position,  that  it  is  in  the 
power  of  a  single  vote  to  decide  the  question  either  way,  by  being 
given  on  that  side.     Thus,  if  the  votes  are  equal  on  each  side,  the 
affirmatives  do  not  preponderate,  and  if  there  are  no  more  votes  to 
be  given,  the  question  must  necessarily  be  held  to  be  decided  in  the 
negative  ;  but  if  there  is  another  vote  to  be  given,  that  vote  must 
of  course   be    a    casting   vote,  because,   on   whichever  side  it  is 
given,  that  becomes  the  preponderating  side  of  the  question.     In 
the  lords  there  is  no  such  vote  to  be  given ;  the  chancellor  if  he  has 
a  right  to  vote,  as  when  a  peer,  having  already  voted  as  such  on 
one  side  or  the  other  of  the  question ;  but  the  speaker  of  the  com- 
mons is  a  member  of  the  house,  and  if  he  was  not  in  the  chair 
would  have  the  same  right  to  vote  with  other  members,  and  he  has 
not  voted  on  the  question ;    and  his  vote  can  decide  either  way  a 
question  which  is  as  interesting  and   important   to  him  and  his 
constituents,  as  it  is  to  the  other  members  and  their  constituents. 
The  only  mode,  by  which  the  lords  and  commons  could  be  put  upon 
a  footing,  in  this  respect,  would  be  to  allow  the  chancellor  a  vote  in 
all  cases,  which  would  alter  the  constitution  of  the  house  of  peers, 
or  to  authorize  him,  when  a  peer,  to  reserve  his  vote  until  the  last, 
and  to  give  it  then  as  a  casting  vote,  which  besides  the  confusion 
that  would  thereby  be  introduced  into  the  practice  of  parliament, 
would,  so  far,  alter  the  constitution  of  the  house  of  lords.     For 
these  reasons,  it  is  presumed,  a  casting  vote   has  always    been 
refused  to  the  chancellor,  as   presiding  officer  of  the  lords,  and 
allowed  to  the  speaker  of  the  commons. 

304.    It  was  very  early  demanded,^  that  the  speaker  of  the  house 

1  The  following  passnge  occurs  in  Sir  which  took  place  in  the  house  of  commons 
Simonds  D'Ewes's  Journals  of  Elizabeth's  of  her  last  parliament,  held  in  the  year  1601, 
Parliaments.     It    is    from    the    proceedings     on  the  question  of  passing  a  bill    "  for  tha 


120  LEGISLATIVE   ASSEMBLIES.  [PaRT  IL 

of  commons  should  not  only  vote  when  the  house  was  equally 
divided,  and  give  a  casting  vote,  but  that  he  should  also  vote,  when, 
there  being  a  majority  of  only  one,  his  vote,  if  given  with  the 
minority,  would  make  that  side  equal  with  the  other,  and  then 
decide  the  question  on  that  side.  But  this  claim  was  disallowed, 
and  has  not  hitherto  been  renewed  in  England.  In  this  country  it 
has  been  maintained,  on  plausible  grounds,  that  a  presiding  officer 
who  is  also  a  member  had  a  right  to  vote  on  all  occasions.  But 
the  claim  is  inadmissible. 

305.  The  claim,  asserted  in  the  preceding  paragraph,  that  the 
speaker  had  a  right  to  vote  whenever  his  vote  would  produce  an 
equal  division,  and  thus  decide  the  question,  is  inadmissible  for  the 
following  reasons  :  —  Fu*st,  The  practice  has  always  been  difler- 
ent.  Second,  The  speaker  has  only  heretofore  given  a  casting 
vote,  that  is,  when  his  vote,  if  given  on  either  side,  would  have  the 
effect  to  decide  the  question  on  that  side ;  whereas,  according  to 
the  claim  in  question,  his  vote  could  operate  only,  if  given  with  the 
minority.  Thud,  The  question  is  aheady  as  effectually  decided, 
according  to  the  universal  practice  of  all  deliberative  bodies,' by  a 
majority  of  one  as  it  could  be  by  a  larger  number.  In  view  of  the 
considerations  stated  in  this  and  the  preceding  paragraphs,  the  fol- 
lowing prmciples,  with  regard  to  the  right  and  duty  of  the  presiding 
officer  of  a  legislative  assembly  in  this  country,  may  be  considered 
as  established :  — 

306.  I.  By  a  casting  vote,  is  meant  one  which  is  given  when  the 
assembly  is  equally  divided,  and  when  the  question  pending  is  in 
such  a  situation,  that  a  vote  more  on  either  side  will  cast  the  pre- 
ponderance on  that  side,  and  decide  the  question  accordingly ;  and 
not  merely  a  vote,  which,  if  given  on  one  side,  will  produce  an 

more  diligent  coming  to  church  on  the  Sun-  stranger,  a  citizen  of  London  and  a  member; 

day."     The  speaker  was  John  Crooke,  Esq.,  and  therefore  he  hath  a  voice.     To  wliich  it 

recorder  of  London.    "  So  it  was  put  to  tlie  was    answered    by   Sir  Walter  Raleigh,  and 

question  thrice    together,   and    because    the  confirmed  by  the  Speaker  himself,  that  he  was 

truth  could  not  be  discerned,  the  house  was  foreclosed  of  his  Voice  by  taking  that  place, 

again  divided,  and  the  I.  I.  I   went  forth  and  which  it  had  pleased    them  to  impose  upon 

were  a  hundred  and  five,  and  the  noes  within  him ;    and  that  he  was  to   be  indifferent  for 

were  a  hundred  and  six.     So  they  got  it  by  both   Parties:     And  withal  shewed,  that  by 

one   voice,  and  the  I.  I.  I  lost;    but  then  the  order  of  the  House  the  bill  was  lost." 

I.   I.  I  said    they   had    Mr.    Speaker   which  Mr.  Secretary  Cecil  said :  "  For  the  matter 

would  make  it  even.     And  then  it  grew  to  a  itself,  the  noes  were  a  hundred  and  six,  and 

question,  whether  he  had  a  voice.     Sir  Ed-  the  I.  I.  I  a  hundred   and  five,  the  Speaker 

ward  Ilobbie  who  was  of  the  I.  I.  I  side,  said,  hath  no  voice,  and  though  I  am  son-y  to  say 

that  when  her  majesty  had  given  us  leave  to  it,  yet  I  must  needs  confess  lost  it  is  and  fare- 

chuse  our  speaker,   she    gave    us   leave  to  well  it." — D'Ewes's  Journals,  683,  684. 
chuse  one  out  of  our  own  number  and  not  a 


Chap.  II.]  officers.  121 

equal  division  of  the  assembly,  and  thereby  prevent  the  other  side 
from  prevailing.  This  principle  exti;nds  to  cases  of  election  by  bal- 
lot' In  these  cases  the  speaker  does  not  vote  by  ballot,  but  waits 
until  the  votes  are  reported,  and  then  votes  orally,  not  for  whom  he 
pleases,  but  for  one,  or  for  the  requisite  number,  of  the  canrlidates 
voted  for,  who  have  received  an  equal  number  of  votes.  This  prin- 
ciple applies  equally  in  those  cases  where  a  less  number  than  a 
majority  is  permitted,  or  a  greater  is  required,  to  decide  a  question 
in  ihe  alfirmative.  Thus,  if  one  third  only  is  permitted  or  recjuired, 
and  the  assembly,  on  a  division,  stands  exactly  one  third  to  two 
thirds,  tliere  is  then  occasion  for  the  giving  of  a  casting  vote  ; 
because  the  presiding  officer  can  then,  by  giving  his  vote,  decide 
the  question  either  way.^ 

307.  When  the  presiding  officer  is  called  upon  to  give  the  cast- 
ing vote,  he  first  states  the  vote  on  either  side,  and  then  that  for 
certain  reasons  which  he  gives,  he  votes  with  the  ayes  or  noes,  as 
the  case  may  be,  and  declares  the  question  carried  on  that  side. 
If,  in  consequence  of  a  subsequent  revision  of  the  votes  or  other- 
wise, it  is  discovered  that  there  was  no  occasion  for  a  casting  vote, 
but  that  the  question  was  decided  without  it,  the  vote  of  the  pre- 
siding officer  is  not  reckoned  with  the  others  on  the  same  side,  but 
disregarded  altogether  as  if  it  had  never  been  given.^ 

308.  II.  When  the  presiding  officer  is  not  a  member  of  the 
assembly  over  which  he  presides,  but  holds  that  office  by  constitu- 
tional provision  in  virtue  of  some  other  to  which  he  is  elected  or 
appointed,  he  has  and  can  have  no  other  authority  as  such  than 
that  conferred  upon  him  by  the  power  from  which  he  derives  his 
appointment,  and,  consequently,  can  only  give  the  casting  vote, 
where  authority  to  do  so  is  alone  conferred.  The  power  to  choose 
one  of  their  own  members  a  temporary  presiding  officer,  in  case  of 
the  absence  or  other  disability  of  the  officer  designated,  though 
expressly  given  in  most  instances,  is  a  necessary  incident  to  a  par- 
liamentary assembly  in  this  country,  and  would  be  considered  as 
given  unless  expressly  withheld  ;  and  upon  such  temporary  pre- 
siding officer,  the  assembly  may  confer  what  authority  they  please. 

309.  III.  When  the  presiding  officer  is  a  member  of  the  body 
over  which  he  presides,  he  is  entitled  only  to  give  the  casting  vote,* 

1  Commons'  Debates,  XIII.  216, 217 ;  Coram,  when  the  speaker  is  counted  to  make  up  a 

Jour.  XXIV.  153.  quomm.     Ordinarily,  if,  on  a  division,   the 

*  Cong.  Globe,  XV.  303,  304.  two  sides  taken  together  do  not  amount  to  a 
8  J.  of  H.  30th  Cong.  2nd  Sess.  211.  quorum,  the  question  on  which   the  division 

*  There  is  no  exception  to  this  rule  even  takes  place  is  not  decided,  but  falls  to  the 

11 


122  LEGISLATIVE    ASSEMBLIES.  [PaKT    IL 

which  is  his  ordinary  parliamentary  privilege ;  but  his  authority,  in 
this  respect,  may  be  further  restrained  or  enlarged  by  the  constitu- 
tion or  by-laws  made  by  the  legislative  body,  or  by  the  rules  of 
proceeding  made  by  the  assembly  itself,  in  pursuance  thereof.  This 
rule  is  confined  strictly  to  ordinary  parliamentary  matters,  such  as 
the  adoption  of  orders  and  resolutions,  the  appointment  of  commit- 
tees, the  passing  of  biUs,  and  the  like. 

310.  IV.  But  in  this  country,  by  constitutional  and  legal  provis- 
ions, there  are  many  duties  in  force  upon  our  legislative  assemblies, 
which  are  not  parliamentary  in  their  character,  and  especially  are 
they  frequently  required  to  make  certain  important  elections.  In 
all  these  cases,  where  a  proceeding,  not  of  a  parliamentary  nature, 
is  imposed  by  constitution  or  law  upon  a  legislative  assembly,  the 
presiding  officer,  if  a  member,  votes,  in  the  first  instance,  like  any 
other  member,  and  does  not  give  a  casting  vote.i 

311.  When  it  becomes  the  duty  of  a  presiding  officer  to  give 
the  casting  vote,  he  may,  if  he  pleases,  give  the  reasons  by  which 
his  vote  is  governed  ;  and  this  is  no  infringement  of  the  rule,  which 
prohibits  him  fi-om  participating  in  the  proceeduigs ;  because,  at 
the  time  when  he  gives  his  vote,  it  is  no  longer  in  his  power  to 
sway  or  influence  the  assembly  by  his  reasons  or  example.  When 
the  occasion  for  a  casting  vote  arises  in  the  preliminary  or  before 
the  final  proceedings,  it  is  usual  for  the  presiding  officer  to  give  the 
casting  vote  in  such  a  manner,  (at  the  same  time  stating  his 
reasons,)  as  to  give  the  assembly  a  further  opportunity  of  consider- 

ground;  but  when  the  two  sides,  though  they  the  constitution  of  the  United  States  in  De- 
amount  to  less  than  a  quorum,  are  yet  enough,  cember,  1803.     On   this   important  question, 
with  the  tellers  and  speaker,  to  make  up  a  which  proposed   to  change  the  form  of  bal- 
quorum,  the  question  does  not  foil  for  want  of  loting  for  president  and  vice-president,  a  two 
a  quorum,  but  is   thereby  decided.      Thus,  thirds  vote   being  required,  there    appeared 
■where  the  house  of  commons  divided  twenty-  eighty-three  in  the  affirmative  and  forty-two 
five  ayes  and  eight  nays,  there  being  seven  in  the  negative,  and  one  vote,  therefore,  was 
wanting  to  a  quorum,  which,  of  course,  was  wanting  in  the  affirmative  to  produce  the  con- 
not  made   up   by  the   four  tellers   and    the  stitutional  majority.    The  speaker,  (Mr.  Ma- 
speaker,  the  question  was  not  decided.   Comm.  con,)  notwithstanding  the  rule  of  the  house, 
Deb.  XII.  313:  Comm.  Jour.  XXIII.  700.     But  claimed  a  right  to  vote,  and  his  claim  being 
where   the  division  was   twenty-seven   ayes  allowed  by  the  house,  he  voted  in  the  affirma- 
and  eight  nays,  the  aggregate  of  which,  with  tive;  and  it  was  by  that  vote,  that  the  amend- 
the  two  tellers  on  each  side  and  the  speaker,  ment  was  carried.     It  will  be  perceived,  that 
just  made  up  a  quorum,   the  question  was  this  was  an  extraordinary  occasion,  and  not  a 
thereby  held  decided.     Comm.  Jour.  XXXIX.  common  parliamentary  proceeding.     The  rule 
g^g^  of  the  house  then,  as  now,  declared,  that  the 
1  The  principles  stated  above  are  not  at  all  speaker  should  not  be  required  to  vote  unless 
impugned,  but  rather  confirmed,  by  the  cele-  the  house  was  equally  divided,  or  unless  his 
brated  vote  given  in  the  house  of  representa-  vote  if  given  for  the  minority,  would  make 
tives  of  congress,  by  Mr,  Speaker  Macon,  on  the  division  equal. 
occasion  of  the  adoption  of  an  amendment  to  . 


Chap.  II.J  "        officers.  123 

ing  the  subject.  The  presiding  officer,  however,  is  at  liberty  to 
vote,  even  on  preliminary  questions,  like  any  other  member,  accord- 
ing to  his  conscience,  and  either  with  or  uithout  assigning  a 
reason.  The  reasons  given  on  such  occasions  are  entered  in  the 
journals.^ 

312.  The  rtde  of  order,  which  prohibits  the  presiding  officer  from 
participating  in  the  proceedings  and  from  voting,  with  the  excep- 
tions and  qualifications  above  stated,  applies  to  all  the  legislative 
assemblies  of  the  United  States ;  though,  it  is  not  uncommon, 
except,  in  those  bodies,  in  which  the  presiding  officer  is  not  a  mem- 
ber, to  authorize  him  to  vote  in  all  cases,  leaving  it  obligatory  on 
him  to  do  so  only  when  the  assembly  is  equally  divided.  Where 
the  presiding  officer  is  not  a  member  of  the  body  over  which  he 
presides,  he  has  only  a  right  to  vote,  as  provided  by  aU  the  consti- 
tutions, (except  that  of  Virginia,  which  precludes  him  from  voting 
at  all,)  when  the  assembly  is  equally  divided,  and  gives  the  casting 
vote.  In  these  assemblies,  therefore,  in  all  of  which  there  is  the  right 
to  choose  one  of  their  own  members  a  temporary  presiding  officer, 
it  is  competent  only  to  regulate  or  enlarge  the  right  of  voting  of  the 
latter,  but  not  of  tlieir  regular  presiding  officer.  Where  the  presid- 
ing officer  exercises  the  privilege  of  voting  in  the  first  instance,  and 
the  votes  are  equally  divided,  the  rule  of  the  house  of  lords 
must  be  held  to  prevail,  namely,  that,  on  an  equal  division  the 
negative  is  to  be  presumed,  and  consequently  that  the  motion  or 
question  is  resolved  in  the  negative  or,  at  aU  events,  that  it 
fails  to  be  resolved  in  the  affirmative,  for  want  of  a  majority,^ 
in  virtue  of  a  rule  to  that  effect.  The  rule  of  the  house  of 
representatives  in  congress,  on  this  subject,  which  was  first 
adopted  in  1789,  provides  that,  "  In  all  cases  of  ballot  by  the 
house,  the  speaker  shall  vote ;  in  other  cases  he  shall  not  be 
required  to  vote,  unless  the  house  be  equally  divided,  or  unless 
his  vote,  if  given  to  the  minority,  wall  make  the  division  equal, 
and  in  case  of  such  equal  division,  the  question  shall  be  lost." 
The  rule  does    not,  in    terms,  require    the    speaker    to    give  any 


*  One  of  the  most  remarkable  cases  of  the  place,  it  might  be  a  question,  whether  the 

giving  of  a  casting   vote  was  that  of  Mr.  motion  is  so   far  decided  as  to  come  withm 

Speaker  Abbott's    vote,  in   1805,  relative   to  tliis    rule .     But  inasmuch  as  the  question  is 

Lord  Melville,  and  which  led  to  the  impeach-  declared  to  be  decided  in  the  negative  and  is 

3ient  of  the  latter.    Hans.  (1)  IV.  320.  so  entered  on  the  journal,  as  in  all  other  cases, 

2  When  a  question  is  made   and   decided  without  reference  to  the  manner,  in  which  it 

either  affirmatively  or   negatively,  the  same  was   made,  or   to   the  number  of  votes,   on 

question  cannot  be  moved  again  during  the  either  side,  there  can  be   no   doul)t   that   the 

same  session.     'Wbere  an  equal  division  takes  rule  applies. 


124  LEGISLATIVE    ASSEMBLIES.  [PaRT   1L 

other  than  a  casting  vote,  in  elections  by  ballot;  but,  on  these 
occasions,  the  speaker  votes  wdth  the  other  members.  It  will  be 
perceived,  that  this  rule  makes  it  imperative  upon  the  speaker  to 
vote  only  on  t\vo  occasions,  namely,  first,  when  the  house  is 
equally  divided  in  the  first  instance,  which  is  the  ordinary  case  of  a 
casting  vote,  and,  secondly,  when  there  is  a  majority  of  only  one 
in  favor  of  the  proposition,  and  the  speaker  is  willing  to  vote 
against  it. 

313.  On  the  death,  resignation,  disquahfication,  or  removal  of 
the  presiding  officer,  a  new  election-  takes  place,  in  the  manner 
already  described.  But,  whenever  by  reason  of  sickness  or  other 
cause,  the  presiding  officer  is  prevented  from  attending  to  the 
duties  of  his  office,  and  is  not  likely  to  be  able  to  resume  them  for 
some  time,  it  is  usual  in  aU  our  legislative  assemblies  to  elect  a 
presiding  officer,  pro  tempore^  to  preside  until  the  former  is  again 
able  to  attend,  in  his  place,  or  ceases  to  hold  the  office  of  pre- 
siding officer.  The  duties  and  functions  of  this  temporary  officer, 
if  elected  in  place  of  a  presiding  officer  who  is  a  member  of 
the  body  over  which  he  presides,  are  ordinarily  the  same  with 
those  of  the  permanent  president,  dming  his  absence,  and  termi- 
nate with  the  retm:n  of  the  latter  to  the  chair;  but,  where  the 
presiding  officer  is  not  a  member  of  the  body  over  which  he 
presides,  the  functions  and  duties  of  the  temporary  presiding 
officer  may  be  otherwise  regulated  by  law  or  by  a  rule  of  the 
assembly.  In  most  of  the  legislative  assemblies  of  this  coun- 
try, it  is  also  provided  by  a  rule,  that  the  presiding  officer  if 
a  member  may  substitute  some  other  member  to  perform  the 
duties  of  the  chair,  in  his  place,  if  he  have  occasion  to  be 
absent  for  a  part  or  the  whole  of  the  then  present  sitting.^  But 
he  is  not  obliged  to  announce  the  name  of  the  substitute  to  the 
house;  and,  if  the  latter  is  in  committee  of  the  whole,  the 
speaker  may  appoint  some  member  to  take  the  chah*,  and  pre- 
■?ide,  when    the    committee   rises.     But    such   substitution  ought 

1  It  is  remarkable,  that,   in  the  house  of  the  crown,  to  officiate  in  the  absence  of  the 

commons,    it  is  not  the  practice  to  elect  a  cliancellor;  and  when  the  latter  and  all  the 

speaker  pro  tempore,  or  to  allow  the  speaker  deputies  are  absent,  the  lords  elect  a  speaker 

to  substitute  any  other  member  temporarily  j)ro  tempore ;  but  he  gives  place  immediately 

In  his  place.     Several  instances  of  the  elec-  to  any  of  the  lords  commissioners,  on  their 

tion  of  temporary  speakers  occurred  during  arrival  in  the  house;  who,  in  their  turn,  give 

the  time  of  the  rebellion  and  of  the  common-  place  to  each  other  according  to  their  prece- 

wealth,  but  the  example  has  not  been  imita-  dence,  and  all  at  last  to  the  lord  chancellor, 

ted  in  more  modern  times.     In  the  house  of  See  Hatsell,  II.  223,  note.     In  February,  1853, 

lords,  on  the  contrary,  several  deputy  speak-  a  select   committee    was   appointed    by  the 

era  are  usually  appointed  by  commission  from  house  of  commons    "  to  consider  the  \)est 


Chap.  IL]  officers.  125 

to  bo  made  as  an  official  act,  and  when  the  presiding  officer  is 
himself  in  the  chair  of  the  assembly,  or  present  in  it,  and  cannot 
be  made  in  his  absence  by  letter  or  otherwise ;  if  the  presid- 
ing officer  is  unable  to  attend,  in  person,  at  the  commencement 
of  the  daily  sitting  of  the  assembly,  his  power  of  substitution 
no  longer  exists,  and  there  is  then  occasion  for  the  election  of  a 
temporary  presiding  officer.^ 

314.  The  authority  to  elect  a  presiding  officer  pro  tempore^ 
where  the  presiding  officer  is  not  a  member  of  the  body  over 
which  he  presides,^  is  expressly  given  by  all  the  constitutions, 
which  designate  the  latter.  But  where  the  presiding  officer  is  a 
member  of  the  body  over  which  he  presides,  the  right  to  supply  his 
place  temporarily  is  admitted  without  any  express  provision,  to 
that  eftbct,  either  of  constitution,  or  law,  or  by  a  rule  of  the  assem- 
bly. When  a  temporary  presiding  officer  is  chosen,  his  election 
ought  to  be  communicated  to  the  other  branch  and  to  the  execu- 
tive ;  but  this  need  not  take  place  in  the  case  of  a  mere  substitu- 
tion. A  temporary  presiding  officer  authenticates  papers  by  his 
signature  ;  one  who  is  merely  substituted  by  the  presiding  officer 
does  not.  The  presiding  officer  usually  names  some  other  member 
to  perform  the  duties  of  the  chair,  when  he  has  occasion  to  address 
the  house  as  a  member,  or  when  any  matter  is  before  the  assembly 
in  which  he  is  interested.^  Where  the  presiding  officer  of  a  legis- 
lative assembly  is  appointed  by  law,  in  virtue  of  his  office,  to  per- 

means  of  providing  for  the  execution  of  the         ^  jt  appears  to  have  been  the  practice  of 

oflBce  of  speaker,  in  the  event  of  Mr.  Spealc-  the  Vice-President  of  the   United  States,  for- 

er's  unavoidable  absence,  by  reason  of  illness  merly,  to  go  through  with  the  ceremony  of 

or  of  other  cause."     The  report  of  this  com-  obtaining    leave  of  absence,  when    he    had 

mittee,  which  embodies  all  the  learning  on  occasion  to  be   absent  from  the  chair;  but 

the  subject  that  could  be  found  in  the  Jour  this  practice  has  been  abandoned  for   many 

nals  or  elsewhere,  was  made  to  the  house,  years.      Such  a  presiding  officer,  when  ho 

and  ordered  to  be  printed,  on  the  12th  of  intends  to  vacate  his  place  for  the  time  being, 

May,  1853.   The  committee  recommended  the  does  so  by  being  absent,  or  by  giving  previ- 

adoption  of  a  standing  order,  that  the  place  ous  notice  of  his  intention, 
of  the  speaker,  when  he  was  absent,  should        ^  Jq  the  28th  Congress,  the  election  of  Mr. 

be  supplied,  from  day  to  day,  by  the  chair-  John   W.  Jones,  of   Virginia,  who  had  been 

man  of  the  committee  of  the  whole  on  Ways  elected  speaker  of  the  house,  being  contro- 

and  Means,  who  acts  as  such  during  the  ses-  verted,  the  speaker  substituted   Mr.  Beards- 

sion.    In  consequence  of  this  report,  resolu-  ley,  of  New  York,  to  perform  the  duties  of 

tions  were  agreed   to  in  1853  by  which  the  the  chair  when  the  committee  of  elections 

chairman  of  Ways  and  Means  may  take  the  was  directed  to  be  appointed,  who  named  tha 

chair    during  the  temporary  absence  of  the  committee    accordingly.       On    every  subse- 

speaker.  quent  occasion,  when  the  same  matter  came 

1  See  J.  of  H.  25th  Cong.  1st  Sess.  630;  J.  before  the  house  both  incidentally  and  finally 

of  H.  28th   Cong.  2d  Sess.  509;  J.  of  S.  82d  the  speaker  substituted  some  member  in  His 

Cong.  1st  Sess.  515;  Reg.  of  Deb.  VIII.  Part  place  to  perform  the  duties  of  the  chair.    S6« 

3,  8,  68;  Reg.  of  Deb.  X.  Part  3,  3,  62;  Cong.  Cong.  Globe,  XIII.  18,  21. 
Globe,  XV.  804;  Cong.  Globe,  XVU.  282. 

II* 


126  LEGISLATIVE  ASSEMBLIES.  [PaKT  II. 

form  other  duties  not  of  a  parliamentary  character  nor  of  the 
assembly,  these  duties  are  performed  by  the  presiding  officer  of  the 
assembly,  or  the  temporary  presiding  officer,  and  not  by  a  substi- 
tute. 

315.  In  every  legislative  assembly,  in  which  it  is  not  other%^dse 
provided,  either  by  some  law,  or  by  a  rule  of  its  own,  its  ordinary 
functions  are  suspended  during  the  absence  of  the  presiding  officer 
from  sickness  or  from  any  other  cause.^  The  only  business  that 
can  then  be  properly  attended  to  is  the  choice  of  a  speaker  or  presi- 
dent j9ro  tempore,  which  must  be  conducted  in  the  manner  ah-eady 
described;  the  clerk  usually  presiding  and  putting  the  necessary 
questions.^ 

316..  One  of  the  most  important  of  the  functions  of  a  presiding 
officer,  whether  chosen  by  the  assembly  itself,  or  otherwise  ap- 
pointed virtute  officii,  is  the  issuing  of  his  warrant,  when  directed, 
for  the  arrest  of  offenders,  or  in  the  execution  of  the  orders  of  the 
assembly.3  This  instrument  is  in  the  form  of  a  common  criminal 
warrant,^  and  is  subject  to  no  other  formalities  than  are  required 
with  reference  to  other  criminal  warrants.  It  is  under  the  hand 
and  seal  of  the  presiding  officer,  and  countersigned  by  the  clerk  of 
the  assembly;^  When  the  warrant  has  been  executed  and  returned, 
the  service  thereof,  and  what  has  been  done  in  pursuance  of  it,  are 
usually  reported  to  the  assembly  by  the  presiding  officer,*^  and  such 
order  taken  thereupon  as  the  assembly  may  think  proper. 

317.  In  our  legislative  assemblies,  it  is  usual,  either  at  the  end 
of  each  session,  or  at  the  close  of  the  period  for  which  they  were 
elected,  to  pass  a  resolution,  thanking  the  presiding  officer,  in 
general  terms,  for  the  manner  in  which  he  has  discharged  the  duties 
of  his  office.  On  these  occasions  the  presiding  officer  usually  calls 
some  other  member  to  the  chair,  when  the  resolution  is  under  con- 
sideration, and  takes  a  convenient  opportunity,  either  at  that  time, 
or  when  he  pronounces  the  final  adjournment  of  the  assembly,  to 
express  his  acknowledgments.  The  resolution  of  thanks,  Avhich  is 
not  ordinarily  opposed,  though  it  may  be,  like  any  other,  is  usually 

1  In  Massachusetts,  it  is  provided  by  a  rule  »  J.  of  S.  IIL  37,  51,  55,  60;   Ann.  of  Cong, 

in  the  house  of  representatives,  that  in  case  II.  68. 

the  speaker  shall   be  absent  at  the  hour,  to  <  Appendix,  VI. 

■which  the  house  shall  be  ad journed,  the  house  ^  in  one  case,  in  which  the  warrant  was 
flhall  be  called  to  order  by  the  oldest  monitor  directed  to  be  issued  for  the  arrest  of  the  clerk 
present  who  shall  preside  until  the  speaker  of  the  house,  it  was  ordered  to  be  counter- 
returns  or  a  temporarj'  one  is  chosen.  signed  by  the  chief  assistant  clerk.    See  J.  of 

«  Hatsell,  II.  223.  H.  28th  Cong.  2d  Sess.  222  to  233. 

•  Cong.  Globe,  IV.  176. 


ClIAP.  II.]  OFFICERS.  127 

moved  and  seconded  by  members  opposed  to  the  presiding  officer 
in  political  sentiment, 

318.  The  qualities  of  a  presiding  officer  are  thus  delineated  by 
the  author  of  the  Lex  Parliamcntaria :  "  The  speaker  ought  to  be 
religious,  honest,  grave,  wise,  faithful,  and  secret.  These  virtues 
must  concur  in  one  person  able  to  supply  that  place."  ^  His  func- 
tions in  ancient  times  are  no  less  aptly  described  by  Mr.  Sergeant 
Glanville,-  in  his  speech  to  the  king,«on  being  presented  as  speaker: 
The  house  of  commons  "  have  met  together  and  chosen  a  speaker ; 
one  of  themselves  to  be  the  mouth,  indeed,  the  servant,  of  all  the 
rest ;  to  steer,  watchfully  and  prudently,  in  aU  their  weighty  con- 
sultations and  debates ;  to  collect,  faithfully  and  readily,  the  genuine 
sense  of  a  numerous  assembly ;  to  propound  the  same  seasonably, 
and  to  mould  it  into  apt  questions,  for  final  resolutions  j*^  and  so 
represent  them  and  their  conclusions,  their  declarations  and  peti- 
tions, upon  all  urgent  occasions,  with  truth,  with  right,  with  life, 
with  lustre,  and  with  full  advantage,  to  your  most  excellent  maj- 
esty." ^ 

319.  The  personal  qualities,  which  the  presiding  officer  of  a  legis- 
lative assembly  in  modern  times  ought  to  possess,  have  been  often 
described,  but  never  perhaps  in  more  just,  forcible^,  or  elegant  terms, 
than  by  Sir  William  Scott,  afterwards  Lord  StoweU,  in  his  speech 
on  nominating  ]\Ir.  Speaker  Abbott,  for  reelection,  in  1802 :  "  To 
an  enlargement  of  mind,  capable  of  embracing  the  most  compre- 
hensive subjects,  must  be  added  the  faculty  of  descending  with 
precision  to  the  most  minute ;  to  a  tenacious  respect  for  forms,  a 
liberal  regard  for  principles ;  to  habits  of  laborious  research,  powers 
of  prompt  and  instant  decision ;  to  a  jealous  affection  for  the  privi- 
leges of  the  house,  an  awful  sense  of  its  duties ;  to  a  firmness  that 
can  resist  solicitation,  a  suavity  of  nature  that  can  receive  it  with- 
out impatience ;  and  to  a  dignity  of  public  demeanor,  suited  to  the 
quality  of  great  affairs,  and  commanding  the  respect  that  is  requisite 
for  conducting  them,  an  m-banity  of  private  manners  that  can  soften 
the  asperities  of  business,  and  adorn  an  office  of  severe  labor  with 
the  concihatory  elegance  of  a  station  of  ease."  ^ 

*  Lex    Parliaraentaria,    264;     Townsend's  question,  which  has  now  become  nearly  or 

Collection?,  174.  quite  obsolete. 

'  Hansard's  Parliamentary  History,  II.  585.  <  Hat?ell,  H.  242,  note. 

»  Allusion  is  here  made  to  a  branch  of  the  *  Hans.  P.  H.  XXXVI.  915 
"speaker's  duty,   namely,  the  forming  of  the 


128  LEGISLATIVE   ASSEMBLIES.  [PaRT    IL 


Section  IL    Recording  Officer. 

320.  The  second  of  the  officers,  essential  to  a  legislative  assem- 
bly, and,  with  us,  elected  in  the  same  manner  with  the  speaker,  is 
the  recording  officer,  usually  denominated  the  clerk  or  secretary. 
The  clerks  of  the  two  houses  of  the  British  parhament  receive  their 
appointment  from  the  sovereign,  by  letters  patent,  and  hold  their 
offices  for  life.  The  clerk  of  the  lords  is  called  the  clerk  of  the  par- 
liaments, and  the  clerk  of  the  commons  the  under  clerk  of  the  par- 
liaments attending  upon  the  commons.  These  titles  are  supposed 
to  owe  their  origin  to  the  form  of  the  letters  patent,  previous  to  the 
separation  of  the  two  houses.  When  the  separation  took  place,  the 
under  clerk  went  with  the  commons,^  and  was  afterwards  described 
in  the  letters  patent,  as  attending  upon  the  commons.  The  func- 
tions of  these  two  officers  are  so  essentially  the  same,  that  for  the 
purpose  of  the  summary  statement,  at  present  in  view,  it  wUl  only 
be  necessary  to  refer  to  those  of  the  clerk  of  the  house  of  commons. 

321.  If  an  appointment  of  a  clerk  of  the  commons  takes  place, 
whilst  parliament  is  sitting,  an  entry  of  the  fact  is  made  upon  the 
journal ;  if  during  a  recess,  the  new  clerk  enters  upon  his  duties  on 
the  assembling  of  the  house,  without  any  formal  notice  being 
taken  of  his  appointment.^  In  both  cases  he  is  previously  sworn, 
in  the  presence  of  the  lord  chancellor,  to  be  true  and  faithful  to  the 
king ;  to  know  nothing  that  shall  be  prejudicial  to  his  crown, 
estate,  and  royal  dignity,  without  resisting  it,  and  with  all  speed 
advertising  his  grace  thereof,  or  at  least  some  of  his  council,  so  that 
the  same  may  come  to  his  knowledge ;  to  serve  the  king  well  and 
truly,  in  the  office  of  under  clerk  of  the  parliaments  attending  upon 
the  commons,  "  making  true  entries,  remembrances,  and  journals, 
of  the  things  done  and  past  in  the  same ; "  to  keep  secret  aU  such 
matters  as  shaU  be  treated  of  in  parliament,  and  not  to  disclose 
the  same  before  they  shall  be  published,  but  to  such  as  they  ought 
to  be  disclosed  unto  ;  and,  generally,  well  and  truly  to  do  and  exe- 
cute all  things  belonging  to  him  to  be  done,  appertaining  to  the 
office  of  under  clerk  of  the  parliaments.^ 

322.  The  clerk,  in  virtue  of  his  office,  has  the  right  of  appointing 
a  deputy  to  take  his  place,  and  perform  his  duties  ;  which,  in  effect, 
amounts  to  the  substitution,  by  the  clerk,  of  another  person  to  the 

1  Hatsell,  n.  255,  282.  *  Hatsell,  II.  255.    The  terms  of  this  oath 

»  Hatsell,  II.  264.  are  remarkable,  with  reference  to  the  politi- 

cal history  of  the  house  of  commons. 


Chap.  II.]  officers.  129 

office  which  he  hokls.  The  clerk  also  appoints  the  clerks  assistant, 
the  committee  clerks,  and  others  to  perform  such  clerical  duties,  as 
are  to  be  done  out  of  the  house ;  ^  who  are  all  subject  to  his  direc- 
tion, —  hold  their  appointments  during  his  pleasure,  —  and  are 
responsible  1o  him,  (as  he  is  to  the  house,)  for  the  due  and  exact 
discharge  of  the  duties  of  their  several  offices.^ 

323.  When  the  clerk  appoints  a  deputy,  he  makes  the  appoint- 
ment in  the  usual  manner  by  an  instrument  under  seal,  and  then 
informs  the  speaker  by  a  letter  which  is  communicated  to  the 
house,  that  he  desires  leave  to  retire  from  any  further  execution 
of  the  duties  of  the  office,  and  to  appoint  a  certain  person,  naming 
him,  as  his  deputy.  The  latter  is  then  called  in  and  takes  the 
place  of  the  clerk  at  the  table.^  When  a  clerk  assistant  is  to  be 
appointed,  the  clerk  informs  the  speaker,  that  with  the  approbation 
of  the  house,  he  has  named  such  a  person  to  be  his  clerk  assistant ; 
the  speaker  acquaints  the  house  w4th  this  nomination,  and  that 
the  person  so  appointed  attends  at  the  door  ;  the  assistant  is  then 
called  in  and  takes  his  seat  at  the  table.* 

324.  Besides  the  clerk  or  his  deputy,  and  the  assistant,  who  sit 
at  the  table,  the  business  of  the  house  of  commons  requires  sundry 
other  clerks,  namely :  a  particular  clerk  appointed  to  attend  the  com- 
mittee of  privileges,  whose  duty  it  is  also  to  attend  the  select  com- 
mittees of  elections,  (and,  when  two  or  more  of  these  committees  are 
sitting  at  the  same  time,  deputies  to  the  clerk  are  appointed  to 
attend  them,  by  the  clerk  of  the  house) ;  four  principal  clerks  with- 
out doors,  (each  of  whom  has  a  deputy  to  assist  him,)  appointed  to 
attend  committees,  who  attend  in  rotation  ;  two  clerks  who  have 
the  direction  of  the  engrossing  office,  and  have  WTiting  clerks  under 
them  for  the  engrossing  '^  of  bills ;  a  clerk  to  collect  the  fees  and 
distribute  them  to  the  speaker  and  other  officers  of  the  house  ;  and 
a  clerk  who  has  the  custody  of  the  journals  and  papers,  and  who 
has  several  writing  clerks  under  him.  All  these  officers  are 
appointed  by  the  clerk,  not  by  any  wTitten  or  formal  appointment, 
like  the  assistant  and  deputy,  but  by  nomination  only.*^ 

325.  When  the  clerk  or  his  assistant  desires,  for  particular  rea- 
sons, to  absent  himself  for  a  time  from  the  service  of  the  house,  his 


1  Hatsell,  n.  256.  always  to  be  exercised  with  the  leave  of  the 

«  Hatsell,  n.  267.  house.    See  Hatsell,  11.  254,  263. 

8  Hatsell,  IT.  254.  ^  The  enfjrossing  of  bills  is  now  dispensed 

*  Hatsell,  II.   263.       Notwithstanding    the  with  in  both  houses,  and  printing  fubstituted 

clerk  has  the  appointment  of  the  deputy  and  in  its  place.     May,  663. 

a.«sistant,  his  authority  in  this  rescect  seems  •  Hatsell,  II.  264,  274. 


130  LEGISLATIVE   ASSEMBLIES.  [PaRT   II. 

request  is  communicated  to  the  house  by  the  speaker,  and  leave 
being  gi-anted,  some  one,  not  unfrequently  a  member,  is  appointed 
to  attend  in  his  place  during  his  absence.  The  same  thing 
occurs,  when  the  clerk  or  his  assistant  is  unable  to  attend  li-om 
indisposition.! 

326.  The  duties  of  the  clerk,  in  making  a  record  of  the  proceed- 
ings, are  summarily  set  forth  in  the  words  of  the  oath,  namely ;  "  to 
make  true  entries,  remembrances,  and  journals,  of  the  things  done 
and  past  "  in  the  house.  But  it  is  not  his  duty,  to  take  minutes  of 
"  particular  men's  speeches,"  ^  or  to  make  a  record  of  what  is 
merely  proposed  or  moved,  without  coming  to  a  vote,  or  being 
introductory  to  one.  It  must  be  recollected,  that,  among  things 
"  done  and  past,"  negative  as  well  as  affirmative  votes,  being 
equally  obligatory  upon  the  house,  are  included. 

327.  The  clerk  and  his  assistant  attend  at  the  table  and  take 
notes  of  the  orders  and  proceedings ;  from  which  the  votes,  as  they 
are  called,  are  made  up  and  printed  each  day,  agreeably  to  the 
order  of  the  house,  "  under  the  direction  of  the  speaker."  At  the 
end  of  the  session,  it  is  the  business  of  the  clerk  to  see  that  the 
joiunal  of  the  session  is  properly  prepared,  and  fairly  transcribed, 
jfrom  the  minute-books,  the  printed  votes,  and  the  original  papers, 
that  have  been  laid  before  the  house.-^  It  was  formerly  the  prac- 
tice for  a  committee  "  to  survey  the  Clerk's  Book  every  Saturday," 
and  to  be  intrusted  with  a  certain  discretion  in  revising  the  entries ; 
but  now  the  votes  are  prepared  on  the  responsibility  of  the  clerk; 
and  after  "  being  first  perused  by  Mr.  Speaker,"  are  printed  for  the 
use  of  members,  and  for  general  circulation.* 

328.  It  is  the  duty  of  the  clerk,  also,  and  a  part  of  his  ordinary 
business,  to  read  whatever  is  required  to  be  read  in  the  house ;  to 
authenticate,  by  his  signature,  all  the  orders  of  the  house,  for  the 
attendance  of  persons,  for  the  bringing  of  papers  and  records, 
for  the  appointment  and  meeting  of  committees  ;5  and  to  certify 
and  sign  the  bills  which  pass  the  house.^     Lastly,  the  clerk  has  the 


1  Hatsell,  II.  253,  254.  See  also  J.  of  S.  the  termination  of  the  session.  But  now  it 
20th  Cong.  1st  Sess.  130 ;  J.  of  H.  29th  Cong,  seems  (see  Perry  &  Knapp,  536,)  that  the 
1st  Sess.  1012.  votes  are  printed  from  day  to  day,  and  the 

2  A  supposed  exception  to  this  rule  will  be  journal  at  an  interval  of  about  a  week  after- 
examined  and  considered  in  another  place.  wards. 

8  Hatsell,  11.  267,  268.    At  the  time  of  the  *  May,  200. 
publication  of  the  last  edition  of  Mr.  Hatsell's  ^  This   happens   only,  when    the  time  and 
work,  (1818,)  from  which  the  above  statement  place  of  the  meeting  of  a  committee  £tre  ap- 
is taken,  it  was  not  the  practice  to  print  the  pointed  by  the  house, 
journal  of  the  house  of  commons,  until  after  *  Hatsell,  II.  268. 


Chap.  IL]  officers.  131 

custody  of  all  the  journals,  papers,  and  files ;  and,  it  is  at  his  peril, 
if  he  suffers  any  of  them  to  be  taken  from  the  table,  or  out  of  his 
custody,  without  the  leave  of  the  house.^ 

329.  If  any  mistake  or  omission  occurs  in  the  entries  of  the 
clerk,  and  it  is  taken  notice  of  or  pointed  out,^  on  the  same  day,  it 
may  be  corrected  cither  by  the  order  of  the  house,  or  by  Ihe  clerk 
himself,  without  any  order ;  but,  if  the  mistake  or  omission  is  not 
discovered  until  afterwards,  it  ought  not  to  be  corrected  without 
an  order  of  the  house,  upon  the  report  of  a  committee  appointed 
to  investigate  the  subject.^ 

330.  The  duties  above  specified,  though  set  fort,h  as  the  appro- 
priate duties  of  the  clerk  of  the  house  of  commons,  are,  in  general, 
equally  incumbent  on  the  clerk  of  the  other  branch.  But  the  clerk 
of  the  lords  has  also  some  duties,  which  are  peculiar  to  that  house, 
namely,  those  which  arise  from  its  being- the  highest  judicial  tribu- 
nal of  ordinary  resort,  and  from  its  being  constituted  a  court  of 
extraordinary  jurisdiction  for  the  trial  of  impeachments  preferred 
by  the  other  house.  These  differences  are  not  of  a  character  to 
require  any  particular  notice  in  reference  to  the  duties  of  the  clerk. 
There  are  some  slight  differences,  also,  in  the  duties  of  the  two,  in 
reference  to  the  custody  of  bills,  and  to  the  routine  of  business, 
which,  so  far  as  they  may  be  necessary,  will  be  stated  in  their 
proper  place. 

331.  In  the  legislatures  of  the  United  States,  the  clerks  as  well 
as  the  other  officers  are  required  by  the  several  constitutions  to  be 
appointed  by  the  assemblies  themselves ;  and  their  offices  expire, 
of  course,  with  the  authority  of  those  from  whom  they  are  derived. 
In  some  States,  provision  is  made  by  law,  for  the '  continuance  in 
office  of  the  clerks  and  other  officers,  until  their  successors  are 
appointed.  In  the  house  of  representatives,  of  the  United  States,'* 
and,  it  is  believed,  in  some  of  the  State  legislatures,  it  is  the  usage 
for  the  clerk  of  the  preceding  house  to  take  a  part  in  his  capacity 
of  clerk,  in  the  organization  of  the  succeeding  one.     Clerks  are 

1  Hatsell,  II.  265.  merit,  is  the  journal  of  the  preceding  day  read 

2  In   the  commons,   Oct.  27,  1680,  it  was     to  the  house,  or  supposed  to  be  read,  at  the 
ordered:  "  That  the  votes  of  each  day  be  read      commencement  of  each  daily  sitting. 

the  day  following  the  first  business;"    "  Or-  »  Hatsell,  II.  266. 

dered,  That  a  committee  be  appointed  to  in-  *  A  rule  of  this  body  provides  that  the  clerk 

spect  the  Joiu-nals  of  the  House  every  day ;  "  shall  be  deemed  to  continue  in  office  until 

and  see  that  due  entries  be  made  therein."  —  another  be  appointed."     This  cannot  refer  to 

Comm.  Jour.  IX.  640.     But  the  practice  re-  a  succeeding  congress,  but  only  to  subsequent 

Quired    by   these  orders  has    been    disused,  sessions  of  the  same  congress,  or  to  the  tenure 

probably,  since  the  printing  of  the  votes.     At  by  which  the  clerk  holds  his  office, 
llie  present  day,  in  neither  house  of  parlia- 


132  LEGISLATIVE    ASSEMBLIES.  [PaRT   II. 

usually  qualified  by  taking  an  oath  of  office;^  and  are  sometimes 
required  to  give  bonds  for  the  faithful  disbursement  of  such  sums 
of  money  as  may  pass  through  their  hands,  in  the  course  of  their 
official  duties.'^ 

332.  The  clerk  of  the  house,  in  the  execution  of  the  duties  of 
his  office,  which  are  exceedingly  multifarious,  may,  if  necessary, 
apply  for  and  receive  the  direction  of  the  house; ^  and,  when 
appealed  to  concerning  the  state  of  the  business,  may  respond 
thereto  through  the  presiding  officer.^  It  is  scarcely  necessary  to 
observe  that  vacancies  may  occur  in  this  office,  either  perpetual, 
as  by  death,'5  resignation,*^  or  removal  from  office,'  or  temporary,^ 
merely,  in  which  cases,  the  vacancy  may  be  filled  in  the  manner 
already  spoken  of. 

333.  The  number  of  the  clerks  employed  in  a  legislative  assem- 
bly, and  their  various  duties  and  functions,  will,  of  course,  depend 
upon  the  size  of  the  body,  and  upon  the  nature  and  amount  of  the 
business  which  usually  comes  before  it.  Hence,  in  the  legislatures 
of  this  country,  a  great  diversity  prevails ;  in  some  there  being  but 
a  single  clerk ;  in  others,  several ;  and  in  others,  again,  some  part 
of  the  duties,  usually  performed  by  the  clerk,  being  imposed  upon 
other  officers.^ 

334.  The  powers  and  duties  of  the  clerks  of  our  legislative  as- 
semblies are  substantially  the  same  with  those  which  have  been 
just  described,  as  belonging  to  the  clerk  of  the  house  of  commons ; 
with  the  exception,  probably,  of  the  power  of  appointing  deputies, 
assistants,  and  other  subordinate  officers  and  clerks.  The  right  of 
electing  their  officers  being  conferred  upon  the  legislative  bodies  by 
constitutional  provisions,  it  would  seem,  that  the  mere  election  of  a 
person  to  be  clerk  could  not,  of  itself,  give  him  a  right,  by  implica- 
tion, to  appoint  other  officers,  even  in  his  own  department.  Clerks 
may,  however,  employ  persons  to  assist  them  in  the  discharge  of 
their  duties,  in  such  manner  as  they  may  think  proper,  without  con- 
ferring on  these  persons  any  official  character.     Committees,  with 

1  The  secretary  of  the  senate,  and  the  clerk         ^  j.  of  H.  31st  Cong.  1st  Sess.  788. 
of  the  house  of  representatives,  take  an  oath         '  J.  of  H.  III.  736. 

of  office,  prescribed  by  the  Act  of  June  1,  '  J.  of  H.  IX.  682 ;  Same,  28th  Cong.  2d 
1789.  Sess.  223  to  233;    Cong.  Globe,  XIV.   147, 

2  The  officers  above  mentioned  give  bond     150. 

for  the  faithful  application  and  disbursement  »  J.  of  H.  Vm.  290;  Same,  IX.  169. 

of  such  contingent  funds  of  their  respective  •  In  Massachusetts,  for  example,  bills  which 

houses  as  shall  come  to  their  hands.  —  Act  of  are  usually  engrossed   by  the   clerk  of  the 

February  23. 1815.  house  in  which  they  originate  are  engrossed 

'  J.  of  H.  IV.  255.  in  the  office  of  the  secretary  of  the  common- 

*  Cong.  Globe,  X.  68.  wealth. 


ClLU'.  II.]  OFFICERS.  133 

the  assent  of  the  assembly,  of  which  they  are  members,  that  they 
may  employ  a  clerk,  appoint  one  for  themselves.  The  secretary  of 
the  senate,  and  the  clerk  of  the  house  of  representatives,  of  the  con- 
gress of  the  United  States,  employ  such  clerks  and  assistants,  as  are 
deemed  necessary,  from  time  to  time,  by  their  respective  houses. 
The  number,  which  is  usually  quite  considerable,  is  <jften  varied. 


Section  III.  —  Executive  Officer. 

335.  It  is  not  enough,  that  a  legislative  assembly  should  have  a 
presiding  officer  to  ascertain  and  declare  its  will,  and  a  recording 
officer  to  authenticate  it ;  an  executive  otiicer,  to  see  that  its  will  is 
obeyed,  is,  in  certain  cases,  equally  essential.  In  parliament,  this 
officer  is  denominated  the  sergeant-at-arms,  and  is  appointed  by 
letters  patent  from  the  crown.  If  he  conducts  himself  in  such  a 
manner  as  to  forfeit  the  confidence  of  the  house,  the  course  is  to 
address  the  crown  to  remove  him  and  appoint  another  in  his  place. 
The  corresponding  officer,  in  this  country,  most  generally  bears  the 
same  title,  though  he  is  sometimes  called  the  messenger. 

336.  The  duties  of  this  olhcer  are  analogous  to  those  of  a  sheriff 
in  a  court  of  justice.  They  consist  principally  in  attending  upon 
the  assembly,  —  maintaining  order  among  the  persons  there  pres- 
ent,—  serving  the  processes  and  executing  the  orders  of  the  assem- 
bly, —  giving  notice  to  the  presiding  officer  of  persons  attending 
with  messages,  or  other  communications,  or  in  obedience  to  the 
orders  of  the  assembly,  —  arresting  persons,  whether  members  or 
strangers,  ordered  to  be  taken  into  custody,  —  and  restraining  in 
confinement,  in  his  custody  or  elsewhere,  all  persons  subjected 
thereto  by  way  of  punishment.  He  has  the  appointment  and 
supervision  of  various  officers  in  his  department,  —  such  as  the 
deputy-sergeant,  messengers,  and  sometimes  the  door-keepers  ;  and, 
as  house-keeper  of  the  house,  has  charge  of  aU  its  committee-rooms 
and  other  buildings,  during  the  sitting  of  the  legislature.  The 
door-keepers  of  the  two  houses  of  congress  are  independent  officers 
appointed  by  the  houses  respectively.  There  is  also  an  officer  of 
the  house  called  the  postmaster.  The  number  and  occupations  of 
the  persons  employed  by  the  several  legislative  bodies  are  so  vari- 
oQs  and  cfifferent,  that  they  do  not  admit  of  a  more  exact  enumera- 
tion. 

337.  The  sergeant-at-arms  being  the  chief  executive  officer  of  the 
assembly,  to  whom  the  warrant  of  the  presiding  officer  is  directed, 

12 


134  LEGISLATIVE  ASSEMBLIES,  [PaRT   IL 

and  by  whom  it  is  served,  it  is  commonly  against  him  that  com- 
plaints are  instituted/  or  actions  brought  '^  for  executing  the  orders 
of  the  assembly.3  In  cases  of  this  kind,  the  sergeant  communicates 
the  fact  to  the  assembly,  who  thereupon  assumes  his  defence,  and 
orders  the  expense  thereof  to  be  defrayed  out  of  its  contingent 
fund.^  Vacancies  in  this  office  may  occur,  and  be  filled,  in  the 
manner  already  mentioned.^ 


Section  IV. —  Chaplain. 

338.  It  has  been  the  immemorial  usage,  in  both  houses  of  parlia- 
ment, to  commence  the  sitting  of  each  day  with  the  reading  of 
prayers.  In  the  lords,  this  service  is  performed  by  the  youngest 
bishop  present,  or,  if  none  are  present,  by  any  peer  in  holy  orders. 
In  the  commons,  prayers  are  read  by  a  chaplain  appointed  by  the 
speaker,  or,  as  he  is  called,  Mr.  Speaker's  Chaplain.  It  appears  to 
have  been  the  practice,  at  least,  after  the  establishment  of  protes- 
tantism, in  the  time  of  Elizabeth,  for  the  clerk  of  the  house  to  read 
prayers,  from  the  book  of  common  prayer,  and  for  the  speaker  also 
to  read  a  special  prayer  composed  by  himself  and  "  fitly  conceived  " 
for  the  time  and  purpose,  every  morning  during  the  session.  Some 
of  the  speaker's  prayers,*^  which  are  preserved  in  the  journals,  are 
composed  in  a  style,  which  would  do  credit  to  any  bishop  of  the 
time.  It  is  probable,  that  this  practice  was  discontinued  during  the 
civil  wars  and  the  commonwealth.  The  present  practice  has  pre- 
vailed for  many  years.  Mr.  Speaker's  chaplain,  besides  a  pecuniary 
compensation,  usually  receives  some  advancement  in  the  church,  for 
his  services  in  that  capacity.  Absence  from  prayers  was  •  anciently 
punished  by  a  small  fine,  for  the  use  of  the  poor.  At  the  present 
day,  no  fine  is  payable  for  non-attendance,  but  presence  in  a  par- 
ticular seat  at  prayers  entitles  the  member  to  hold  the  same  seat  for 
the  day. 

339.  In  the  legislatures  of  the  United  States,  it  is  the  general 
practice  for  each  branch,  soon  after  its  organization,  to  elect  a  chap- 

1,1.  of  H.  III.  748,  752,  754;  Ann.  of  Cong,  ume   of  Wheaton's   Reports.     In  the  former 

L  865.  case,   the   action   was    brought  against    the 

*  J.  of  H.  15th  Cong.  2d  Sess.  135.  speaker,  and  in  the  latter,  against  the    ser- 

8  The  leading  cases,  in  which  the  power  of  geant.     Sir  Francis  Burdett,  also,  brought  an 

a  legislative  assembly  to  commit  is  estab-  action  against  the  sergeant-at-arms. 

lished,  are,  in  England,  that  of  Burdett  v.  Ab-  *  J.  of  H.  15th  Cong.  2d  Sess.  135. 

bott,  reported   in   the   fourteenth  volume   of  ^  j.  of  H.  21st  Cong.  1st   Sess.  9;  J.  of  H. 

East's   Reports,  and,  in  this  country,  that  of  22d  Cong.  2d  Sess.  374. 

Anderson  v.  Dunn,  reported  in  the  sixth  vol-  *  Appendix.  VIL 


Chap.  II.]  officers.  135 

lain,  who  attends  at  the  commencement  of  each  day's  sitting,  ana 
prays  with  the  members,  after  the  maimer  of  the  sect  or  denomina- 
tion to  which  he  belongs.  The  two  branches  of  congress,  in  pm-- 
suance  of  a  joint  resolution,  previously  agreed  upon  for  the  purpose, 
elect  each  a  chaplain  of  a  difierent  sect,  who  exchange  with  one 
another  weekly. 

Section  V.    Printer. 

340.  In  modern  times,  the  substitution  of  printing  for  reading  ia 
legislative  assemblies  has  become  so  general,  that  it  is  usual  to 
appoint  some  one  to  the  office  of  printer  to  the  assembly.  In  the 
house  of  commons,  this  appointment  is  usually  left  with  the 
speaker.  With  us  the  choice  is  generally  made  by  the  assembly 
itself;  either  by  means  of  an  election,  in  the  ordinary  way,  or  by 
receiving  proposals,  and  giving  the  appointment  to  the  person, 
whose  terms,  on  the  whole,  are  the  most  advantageous.  In  assem- 
blies, where  there  is  but  little  printing  reqviired,  the  usage  sometimes 
is,  to  authorize  the  presiding  officer  or  the  clerk,  on  each  particiilar 
occasion,  to  employ  some  one  for  the  purpose.  In  whatever  man- 
ner, however,  a  printer  may  be  employed,  he  is,  for  the  time  being, 
the  servant  of  the  assembly ;  and,  as  such,  responsible  for  the  cus- 
tody and  safe-keeping  of  all  papers  and  documents  intrusted  to  his 
care,  and  bound  to  secrecy  in  all  cases,  where  secrecy  is  enjoined, 
either  expressly  or  by  the  nature  of  the  subject.  He  is  also  entitled 
to  the  protection  of  the  house  in  the  discharge  of  his  duty.^  The 
printing  of  congress  is  of  such  importance,  and  of  such  vast  extent, 
that  it  is  the  subject  of  regulation  by  law.  Each  house  employs 
its  own  printer. 

1  The  powers  and  duties  of  this  officer,  in  be  libellous.  Stockdale  brought  his  action 
the  house  of  commons,  have  within  a  few  against  the  printers.  The  question  primarily 
years  given  rise  to  the  only  controversy  of  involved  was  whether  the  house  of  commons 
much  importance,  touching  parliamentary  could  authorize  the  publication  of  a  libel, 
privilege,  which  has  occurred  in  modern  The  house  took  the  side  of  their  printers,  and 
times.  The  immediate  occasion  was  the  pub-  passed  several  resolutions,  asserting  their  own 
lication,  in  pursuance  of  an  order  of  the  house  privileges,  and  their  exclusive  jurisdiction  of 
of  commons,  by  the  Messrs.  Hansard,  printers  all  questions  in  which  they  were  involved, 
of  the  house,  of  certain  reports  of  the  inspec-  But  the  claim  of  privilege  set  up  by  the  de- 
tors  of  prisons,  in  one  of  which,  a  book  pub-  fendant  was  disallowed  by  the  court  of  King'a 
lished  by  a  bookseller  named  Stockdale,  was  Bench.  —  See  Post,  §  433. 
described  in  a  manner  which  he  conceived  to 


136  LEGISLATIVE   ASSEMBLIES.  [PaRT   II. 


CHAPTER   THIRD. 

OF    THE     PLACE    AND    MANNER    OF    SITTING    OF    A    LEGISLATIVE 
•     ASSEMBLY,   AND    OF   THE    FORMAL    PROCEEDINGS    THEREIN 
FOR   THE    TRANSACTION    OF    BUSINESS. 

341.  Under  this  head  of  the  subject,  it  is  proposed  to  give  an 
explanation  of  several  matters,  which  are  essential  to  or  connected 
with  the  orderly  proceeding  of  a  legislative  assembly,  in  the  trans- 
action of  its  business,  namely ;  of  the  place  and  manner  of  sitting ; 
of  the  continuation,  and  close,  of  the  daily  sitting ;  of  the  personal 
deportment  of  the  members  during  the  sitting ;  of  the  manner  of 
speaking;  of  the  rule  of  decision ;  of  the  several  forms  of  taking  a 
question  to  ascertain  the  sense  of  the  assembly ;  of  the  journal  or 
record  of  the  proceedings ;  of  the  printing  of  bills  and  other  docu- 
ments ;  and  of  the  attendance  and  pay  of  the  members. 

Section  I.    Place  and  Manner  of  Sitting. 

342.  The  rooms,  necessary  for  the  holding  of  a  legislative  assem- 
bly, consist  of  a  principal  hall  or  chamber,  of  a  sufficient  size  for 
the  ordinary  sitting  of  the  members,  when  occupied  with  business  ; 
a  number  of  smaller  rooms  adjoining,  or  in  the  same  building  with, 
the  principal  hall,  for  the  use  of  committees ;  a  room  adjoining  the 
principal  chamber,  for  the  use  of  the  presiding  officer ;  one  or  more 
apartments  for  the  accommodation  of  the  recording  oihcers,  and 
the  custody  of  their  papers,  journals,  and  records;  one  or  more 
rooms  for  the  sergeant-at-arms,  suitable  for  the  restraint  of  persons 
in  his  custody  ;  and  one  or  more  rooms  to  be  used  as  ante-rooms, 
for  persons  in  attendance  by  order  of  the  assembly  or  otherwise. 
To  these  must  be  added*  a  conference  room,  for  occasional  meetings 
of  the  two  branches. 

343.  The  place  where  the  assembly  is  to  sit,  being  designated 
and  appointed  beforehand  by  law,  and  to  be  changed  only  by  legal 
authority,  no  valid  meeting  can  be  held,  or  business  transacted,  at 
any  other  place.  The  place  of  meeting  is  in  the  possession  of  the 
assembly  while  sitting,  and  of  its  appropriate  officers  when  not  ir. 
session.     The  assembly  itself,  as  an  aggregate  body,  and  the  per- 


Chap.  III.]  place  and  manner  of  sixTiNa.  137 

sons  of  its  members  individually,  while  sitting,  are  sacred  and 
inviolable,  and  cannot  rightfully  be  interfered  with,  in  any  manner, 
by  any  other  tribunal  or  autliorily  whatever.'  This  princi])le  is  so 
essential,  that  when  violated,  the  government  itself  is  attacked; 
and,  if  the  violation  is  continued,  the  government  is  for  the  time 
overturned.  The  assembly,  also,  has  the  absolute  control  of  the 
place  of  its  sitting,  and  may  exclude  therefrom,  at  its  pleasure,  all 
strangers,  that  is,  aU  persons  who  are  not  its  members,  even  though 
they  are  members  of  a  coordinate  branch,  or  of  some  other  depart- 
ment of  government.  It  is  hardly  necessary  to  remark,  that,  the 
assembly  may  compel  the  observance  of  a  proper  decorum  by  aU 
persons,  whom  it  allows  to  be  present  at  its  proceedings.  On  the 
other  hand,  the  mere  place  of  sitting  is  no  sanctuary ;  and,  when 
the  assejTibly  is  not  in  session,  is  no  more  inviolable  than  any  other 
private  or  public  apartment.^ 

344.  In  theory,  the  internal  proceedings  of  aU  deliberative  bodies, 
legislative  as  well  as  others,  are  supposed  to  be  conducted  with 
closed  doors,  and  in  secret ;  ^  the  result  only  of  their  deliberations 
being  made  known,  according  to  the  subject-matter,  or  the  persons 
interested,  either  by  public  proclamation,  or  by  being  announced 
to  the  parties,  who  are  called  in  for  the  purpose ;  and  in  courts  of 
justice,  juries,  courts-martial,  committees,  and,  indeed,  in  almost 
every  variety  of  deliberative  bodies,  not  legislative  in  their  charac- 
ter, the  practice  conforms  to  the  theory.  In  regard  to  legislative 
assembUes,  though  supposed,  with  certain  exceptions,  wliich  will 
be  mentioned,  presently,  to  sit  with  closed  doors,  they  are  all  now 
practically  and  to  a  greater  or  less  extent  open  to  the  public. 

1  Au  instance  of  the  invasion  of  a  legisla-  such  a  character  as  to  entitle  them  to  any 

tive  assembly  by  another  courdhiate  branch  weight  or  authority. 

of  the  government  occurred  iu  the  reign  of  2  j^^^  attempt  was  made  in  1S15,  by  a  mem- 
Charles  I.  and  was  among  the  last  acts  of  that  ber  of  the  house  of  commons  to  make  tha 
infatuated  and  unfortunate  sovereign.  I  al-  chamber  of  the  house  a  sort  of  sanctuary, 
lude  to  his  going  into  tlie  house  of  commons,  Lord  Cochrane,  (then  iu  the  naval  service, 
on  the  4th  of  January,  1641,  while  the  house  afterwards  Lord  Dundonald,)  a  member,  hav- 
was  sitting,  for  the  purpose  of  seizing  certain  ing  been  indicted  and  convicted  for  a  ccnspir- 
members,  whom  he  had  accused  of  high  acy,  was  committed  by  the  court  of  King's 
treason.  This  incident  is  probably  familiar,  Bench  to  prison.  He  escaped  therefrom,  and 
as  it  is  described  in  the  books  of  history.  took  refuge  in  the  house,  at  a  time  when  the 
Those  who  wish  to  see  it  more  fully  set  forth,  house  was  not  sitting,  although  at  a  time 
will  find  an  account  of  it  in  Rushworth's  His-  when,  by  law,  the  sitting  might  have  com- 
torical  Collections,  vol.  IV.  p.  474.  This  event  menced.  He  was  pui-sued  by  the  marshal, 
also  constitutes  a  sort  of  epoch  in  parliament-  and  arrested  in  the  house,  and  taken  back  to 
ary  law.  Mr.  Hatsell,  in  his  collection  of  prison.  The  matter  was  investigated  by  a 
Precedents,  omits  every  thing  that  occurred  committee,  who  came  to  the  conchjsion,  that 
in  parliament  from  this  time,  until  the  resto-  the  privileges  of  the  house  had  not  been  vio 
ration,  in  1660;  the  precedents  of  proceedings  lated. 
during  this  period  not  being  in  his  opinion  of  ^  Pemberton,  25. 

12* 


138  LEGISLATIVE    ASSEMBLIES.  [PaRT    II. 

345.  In  both  branches  of  parUament,  the  proceedings  were  con- 
ducted with  closed  doors  from  the  earliest  times,  down  to  less  than 
a  hundred  years  ago  ;  though  it  is  not  improbable,  that  a  few  per- 
sons were  always  occasionally  allowed  to  be  present,  by  the  con- 
nivance of  the  officers  or  members,  till  the  number  became  quite 
considerable,  and  a  sort  of  system  was  established,  upon  which 
admission  to  these  bodies  could  be  obtained  by  a  Hmited  number 
of  persons ;  but  this  always  was  and  now  is  a  matter  of  mere 
connivance,  and  not  of  right;  and  the  proceedings  of  these  bodies 
are  supposed,  even  at  the  present  day,  to  be  conducted  in  private ; 
accommodation  is  indeed  provided  in  each  for  the  reporters  for  the 
newspapers ;  for  a  Hmited  number  of  the  members  of  the  other 
house ;  and  for  a  very  few  other  persons  occasionally  present ;  but, 
all  this  is  a  mere  matter  of  indulgence ;  and  the  house  may  not- 
withstanding be  cleared  of  all  but  members,  at  any  moment, 
without  debate  or  delay,  and  upon  the  demand  of  any  single  mem- 
ber. The  exclusion  of  strangers  from  these  bodies,  though  their 
presence  is  connived  at  by  the  officers  and  members,  can  at  any 
time  be  enforced  without  a  previous  order  of  the  house,  all  that  is 
necessary,  for  this  purpose  being  that  some  member  should  take 
notice  of  their  presence,  and  should  communicate  that  fact  to  the 
house ;  in  the  house  of  commons,  the  speaker  is  then  obliged  to 
order  them  to  withdraw  without  putting  a  question.  Strangers  are 
present  in  either  house  only  by  sufferance,  and  upon  no  other 
ground  has  their  presence  been  recognized.^ 

346.  In  this  country,  with  the  exceptions  alluded  to,  all  the 
legislative  assemblies  are,  in  theory,  and  until  a  comparatively  recent 
period,  were  in  fact,  closed  against  the  public ;  all  the  provincial 
legislatures  probably  sat  with  closed  doors ;  the  proceedings  of  the 
old  confederation  congress  were  always  in  secret ;  and  it  was  not 
until  the  fourth  congi-ess  which  commenced  in  the  year  1795,^  that, 
after  a  long  struggle,  the  doors  of  the  United  States  senate,  when 
sitting  in  a  legislative  or  judicial  capacity,*^  were  thrown  open  to 
the  pubhc.  The  public  have  since  been  admitted  to  the  debates  in 
all  our  legislative  bodies ;  in  some  by  the  permission  of  the  assem- 
blies themselves ;  in  others  by  constitutional  right.  In  the  first, 
unless  the  theoretical  character  of  those  bodies  should  be  con- 
sidered as  changed  by  long  usage  and  the  nature  of  our  govern- 
ment and  institutions,  it  would  seem,  that  it  could  not  be  compe- 

1  May,  207.  *  The  doors  are  still  closed  when  the  senate 

»  J.  of  S.  II.  33,  34.  is  sitting  in  its  executive  capacity. 


Chap.  III.]  place  akd  manner  of  sitting.  13S 

tent  for  a  legislative  assembly  by  any  connivance,  remissness,  or 
voluntary  act  of  its  own,  to  change  the  basis  of  its  original  consti- 
tution. In  these  bodies,  therefore,  whatever  rule  or  usage  there 
may  be  to  the  contrary,  their  theoretical  character  is  to  sit  with 
closed  doors  ;  and  it  is  in  the  power  of  any  member,  upon  his  mere 
demand,  and  without  any  previous  order  therefor,  to  make  the 
practice  correspond  to  the  theory,  or,  in  other  words,  to  exclude 
strangers  therefrom  at  his  pleasure. 

347.  This  right  of  an  individual  member,  without  debate,  and  at 
pleasure,  to  exclude  strangers  from  a  legislative  assembly,^  is  essen- 
tial to  its  independent  existence,  and  the  due  exercise  of  its  func- 
tions, as  such ;  for  otherwise,  it  would  be  out  of  the  power  of 
the  members  to  make  those  communications  to  the  assembly 
which  they  think  ought  to  be  confidential,  and  out  of  the  power  of 
the  assembly  itself  to  consider  any  thing  in  secret ;  for  if  it  was 
necessary  to  obtain  a  previous  order  of  the  assembly,  before  it 
could  receive  a  communication,  or  discuss  a  subject,  with  closed 
doors,  then  a  motion  must  be  made  and  seconded  for  such  order, 
and,  a  debate  might  ensue  thereon,  in  public,  whether  a  particular 
matter  should  be  considered  with  closed  doors,  which,  in  most  cases, 
would  be  equivalent  to  divulging  the  matter  proposed  to  be  kept  secret. 

348.  The  legislative  assemblies  of  the  United  States  and  of  the 
several  States  owe  both  their  existence  and  their  character,  in  re- 
spect to  the  publicity  of  their  proceedings,  to  the  respective  consti- 
tutions by  which  they  are  established,  and  are  divisible  into  t^o 
principal  classes. 

349.  I.  The  constitution  of  the  United  States  and  those  of  the 
States  of  Maine,  Massachusetts,  Rhode  Island,  New  Jersey,  Vir- 
ginia, North  Carolina,  South  Carolina,  Georgia,  Louisiana,  Ken- 
tucky, contain  no  provisions  at  all  with  regard  to  this  subject. 
The  legislative  assemblies,  therefore,  estabhshed  by  these  constitu- 
tions, according  to  the  common  parliamentary  law  above  stated,  are 
not  pubUc  in  their  character.  In  these  assemblies,  consequently,  it 
is  the  right  of  each  individual  member,  in  theory,  at  least,  whenever 
he  notices  the  presence  of  strangers,  to  have  the  assembly  cleared 
of  them,  and  brought  back  to  its  proper  character  of  an  assembly 
sitting  with  closed  doors.  Whatever  might  be  thought,  or  might 
be  the  result,  of  an  attempt  on  the  part  of  individual  members  to 

*  The  standing  order  of  the  house  of  com-  to  him,  adds  nothing  to  the  right  of  the  house 

mens,  by  which  the  sergeant  is  directed  to  take  to  proceed  without  the  presence  of  strangers, 

into  his  custody  all  strangers  that  he   may  or  to  that  of  any  member  to  exchide  them 

see  in  the  house,  or  that  may  be  pouited  out  from  the  assembly.  —  May,  206,  207. 


140  LEGISLATIVE  ASSEMBLIES.  [PaRT   1L 

assert  this  right,  its  application  may  doubtless  be  constitutionally 
regulated  by  each  assembly  for  itself.     The  rule  on  this  subject, 
adopted  by  the  house  of  representatives  of  the  United  States,  which 
is  one  of  the  bodies  belonging  to  this  class,  is  as  follows :  —  "  When- 
ever confidential  communications  are  received  from  the  president  of 
the  United  States,  the  house  shall  be  cleared  of  all  persons,  except 
the  members,  clerk,  sergeant-at-arms,  and  door-keeper,  and  so  con- 
tinue dming  the  reading  of  such  communications,  and,   (unless 
other\\dse  dii-ected  by  the  house,)  during  all  debates  and  proceedings 
to  be  had  thereon.     And  when  the  speaker,  or  any  other  member, 
shall  inform  the  house  that  he  has  communications  to  make  which 
he  conceives  ought  to  be  kept  secret,  the  house  shall,  in  like  man- 
ner, be  cleared  till  the  communication  be  made  ;  the  house  shall 
then  determine  whether  the  matter  communicated  requhes  secrecy 
or  not,  and  take  order  accordingly,"     The  rule  on  this  subject,  in 
the  senate  of  the  United  States,  is,  besides  enjoining  secrecy  as  to 
confidential  communications  from  the  president,  that,  "  On  a  mo- 
tion made  and  seconded  to  shut  the  doors  of  the  senate,  on  the  dis- 
cussion of  any  business  which  may,  in  the  opinion  of  a  member, 
requh-e  secrecy,  the  president  shall  direct  the  gallery  to  be  cleared  ; 
and,  during  the  discussion  of  such  motion,  the  doors  shall  remain 
shut."     These  rules,  it  will  be  perceived,  do  not  cover  the  whole 
ground ;  but  the  practice  under  them,  seems  to  leave  no  doubt  that 
the  principle  of  the  common  parliamentary  law,  as  above  stated,  is 
recognized  in  both  houses  of  congress.     In  the  senate,  it  has  been 
decided,  that  the  house  is  to  be  cleared,  and  the  proceedings  con- 
ducted in  secret,  on  the  annunciation  of  a  message  of  a  confidential 
character,  from  the  other  house,^  or  at  the  request  of  any  individual 
member ;  ^  and  in  the  house  of  representatives,  messages  from  the 
senate  are  received  in  the  same  manner,  and  put  upon  the  same 
footing,^  with  messages  fi:om  the  president  of  the  United  States."^ 
In  both  houses,  therefore,  when  a  confidential  message  is  announced, 
either  from  one  house  to  the  other,  or  from  the  executive  to  either, 
the  house  is  cleared  to  receive  it  in  the  manner  mentioned  in  the 
rule ;  if  the  message  is  in  writing,  marked  confidential,  or,  from  an 
inspection  of  its  contents  or  otherwise  it  appears  to  be  so,  either 
wholly  or  in  part,"^  the  presiding  officer  announces  the  fact,  and  the 
house  is  thereupon  immediately  cleared,  and  the  message,  or  such 

1  J.  of  S.  III.  265;  Same,  V.  93.  «  J.  of  H.  VII.  472,  474,  488;  Same,  VIIl 

2  J.  of  S.  v.  93.  273,  628. 

3  J.  of  H.  v.  550;  Same,  VII.  474;  Same,         6  j.  of  H.  II.  331. 
VUI.  289:  Same,  471,  476,  522. 


Chap.  III.]  place  and  manner  of  sitting.  141 

part  thereof  as  is  confidential,  is  at  once  communicated  ;  and,  so,  if 
the  speaker,^  or  the  chairman  of  a  committee,-  or  any  individual 
member,"'  informs  the  house  that  he  has  a  communication  to  make 
to  it  which  he  thinks  ought  to  be  made  in  secret,  and  requests  the 
house  to  be  cleared  for  the  purpose,  the  house  is  immediately 
cleared  accordingly.  The  injunction  of  secrecy  thus  imposed  may 
be  removed  *  at  any  time  ;  but  the  motion  for  this  purpose  is  confi- 
dential in  its  nature,  and  can  only  be  made  with  closed  doors  ;^ 
though  when  made  it  is  entitled  to  precedence  over  any  motion  to 
proceed  to  the  business  to  whicli  it  is  applicable/'  When  any  matter 
has  once  been  introduced  into  the  house  in  its  ordinary  capacity,  a 
motion,  that  the  further  discussion  thereof  shall  take  place  in  secret, 
may  be  made,  considered,  and  decided,  in  open  session."  Any 
invasion  of  the  obligation  of  secrecy,  imposed  in  the  manner  above 
described,  or  by  any  other  vote  of  the  house,  as,  for  example,  the 
printing  of  a  bill,^  whether  such  invasion  takes  place  by  members,^ 
or  others,^'^  is  punishable  as  a  contempt.  The  proceedings,  which 
take  place  with  closed  doors,  are  recorded  in  a  separate  jomrnal, 
which  partakes  of  the  character  of  the  transactions  recorded  in  it,  and 
cannot  be  adverted  to,  read  in  debate,  or  amended,  at  any  distance 
of  time,  until  the  injunction  of  secrecy  is  removed.^^ 

350.  II.  The  second  class  of  legislative  assemblies  consists  of 
those,  in  reference  to  which  it  is  provided,  in  the  instrument  of  their 
creation,  and  in  some  appropriate  phraseology,  that  all  their  pro- 
ceedings and  debates  shall  be  open  to  the  pubUc,  except  upon  occa- 
sions when  secrecy  is  required.  The  States,  in  the  constitutions  of 
which  this  provision  is  inserted,  are  the  folloA\4ng,  namely :  —  New 
Hampshire,  Vermont,  Connecticut,  New  York,  Pennsylvania,  Dela- 
ware, Maryland,  Florida,  Alabama,  Mississippi,  Tennessee,  Ohio, 
Indiana,  Illinois,  Michigan,  JNIissouri,  Arkansas,  Iowa,  Wisconsin, 
and  California.  In  these  States,  therefore,  the  legislative  assem- 
blies are  open  and  public,  by  the  instrument  of  their  creation,  and 
cannot  proceed,  upon  any  particular  occasion,  with  closed  doors, 
without  an  order  to  that  effect.     This  may  take  place,  in  aU  the 

1  J.  of  H.  VII.  493;  Same,  19th  Cong.  1st  »  j.  of  H.  VI.  382;  Same,  VII.  492. 

Bess.  98.  «  Ann.  of  Cong.  9th  Cong.  2d  Sess.  402, 403. 

a  J.  of  H.  ^TII.  273.  '  J.  of  H.  VIH.  436,  444;  Same,  32d  Cong. 

8  J.  of  H.  VII.  474,  492;  Same,  VIH.  546,  2d  Sess.  172. 

647,  616,  675;  Same,  15th  Cong.  2d  Sess.  117;  »  j.  of  S.  I.  884;  Same,  V.  867. 

Ann.  of  Cong.  5th  Cong.  956 ;  Ann.  of  Cong.  »  J.  of  S.  HI.  265. 

9th  Cong.  1st  Sess.  342 ;  2d  Sess.  1261,  530.  w  J.  of  H.  YIU.  279,  260,  446. 

*  J.  of  S.  V.  106,  149;  J.  of  H.  VI.  198,  199,  "  J.  of  H.  V.  869,  550. 
597,  598 ;  Same,  VIII.  459  to  469,  493,  494, 495, 
496. 


l42  legislative  assemblies.  [Part  IT. 

States  above  mentioned,  except  Ohio,  by  a  major  vote ;  in  Ohio, 
the  provision  is,  that  "the  proceedings  of  both  houses  shall  be 
public,  except  in  cases,  which  in  the  opinion  of  t\vo  thirds  of  those 
present  require  secrecy."  In  these  States,  therefore,  the  legislative 
assemblies  are  not  competent  to  make  any  rule  with  regard  to  pro- 
ceeding in  secret,  contrary  to  the  constitutional  provisions  above 
mentioned.  It  is  probable,  howxver,  that  the  reception  of  a  confi- 
dential message  from  the  executive  would  be  considered,  without 
regard  to  its  character,  as  a  further  reason  for  the  adoption  of  an 
order  to  proceed  upon  it,  at  least,  in  the  first  instance,  with  closed 
doors.  In  several  of  the  States  enumerated  in  this  paragraph, 
namely,  Pennsylvania,  Delaware,  Maryland,  Tennessee,  Indiana, 
Illinois,  Missouri,  Arkansas,  the  provisions  as  to  publicity  are  ex- 
pressly extended  to  committees  of  the  whole. 

351.  III.  The  constitution  of  Texas  is  the  only  one,  which  pro- 
vides simply  that  "  The  doors  of  each  house  shall  be  kept  open." 
In  this  State,  therefore,  the  legislative  assemblies  cannot,  on  any 
occasion,  or  for  any  purpose,  proceed  with  closed  doors,  in  vuiue  of 
any  rule  or  order  to  that  effect. 

352.  In  the  absence  of  any  rule  on  the  subject  every  member 
occupies  any  vacant  seat  he  pleases,  and  abandons  his  right  to  it, 
when  he  leaves  the  seat.  In  the  house  of  lords,  there  is  a  standing 
order,  assigning  the  places  for  the  sitting  of  members  ;  but  this  order 
is  only  enforced  occasionally ;  in  general,  the  peers,  with  the  excep- 
tion of  the  bishops,  who  always  sit  together  in  a  particular  part  of 
the  house,  occupy  different  sides  of  it,  according  to  the  parties  to 
which  they  belong.  In  the  house  of  commons,  no  places  are  par- 
ticularly allotted  to  members ;  but  it  is  understood,  that  members 
who  have  received  the  thanks  of  the  house  in  their  places,  (which 
often  happens  to  officers  of  the  army  or  navy  who  are  members,) 
are  entitled,  by  courtesy,  to  keep  the  same  places  during  that  par- 
liament ;  1  and  it  is  not  uncommon  for  old  members,  who  are  con- 
stantly in  the  habit  of  attending  in  one  place,  to  be  allowed  to 
occupy  it  without  disturbance.  With  these  exceptions,  the  only 
mode  of  securing  a  particular  seat  is  by  being  present  at  prayers. 
The  practice  is,  for  the  two  parties,  into  which  the  house  is  usually 
divided,  to  arrange  themselves  on  opposite  sides,  the  ministers  and 
their  friends  on  the  right,  and  the  opposition  on  the  left  of  the  chair ; 
the  front  bench  on  the  right  hand,  which  is  called  the  treasury  or 
privy  councillors'  bench,  being  appropriated  to  the  members  of  the 

1  HatseU,  IL  93,  94. 


Chap.  III.]  place  and  manner  of  sitting.  143 

administration ;  and  the  front  bench  on  the  opposite  side  to  the 
leading  members  of  the  opposition  who  have  served  in  high  olTices 
of  state.^ 

353.  In  the  legislative  assemblies  of  the  United  States,  besides 
the  above,  three  modes  of  assigning  the  seats  among  the  members 
appear  to  be  commonly  in  use,  namely :  the  seats  are  either  deter- 
mined by  lot ;  or  according  to  seniority  of  age,  or  membership  ;  or 
are  taken  possession  of  by  the  members  individually  ;  but  in  what- 
ever mode  they  may  be  assigned  or  apjiropriated,  in  the  first 
instance,  they  are  permanent  during  the  session.  In  the  house  of 
representatives  of  the  United  States,  the  members,  having  taken 
what  seats  they  please,  in  the  first  instance,  at  the  commencement 
of  the  first  session  of  each  congress,  abandon  them  in  pursuance 
of  an  order  to  that  effect,  and  draw  lots  for  the  right  of  choice,  and 
make  their  selection  accordingly.'-^  If  a  dispute  arises  between  two 
members,  as  to  their  respective  rights  to  a  particular  seat,  they  may 
refer  the  matter  to  the  house.*^  In  the  senate  of  Massachu- 
setts, which  always  consists  of  a  certain  fixed  number  of 
members,  the  seats  are  assigned  by  a  committee,  usually  accord- 
ing to  seniority  of  legislative  service.  In  the  house  of  representa- 
tives of  the  same  State,  which  is  a  large  body,  but  of  uncertain 
size,  the  seats  themselves,  and  not  merely  the  right  of  selection, 
are  assigned  by  lot  a  day  or  trvvo  previous  to  the  commencement  of 
each  session,  under  the  direction  of  the  sergeant-at-arms. 

354.  The  mace,  which  is  the  emblem  of  the  authority  of  a  legis- 
lative assembly,  is  an  ornamented  silver  club  of  a  convenient  size. 
The    one    belonging  to    the    house   of  commons  was    originally 

^  The  room?  in  which  the  two  houses  of  the  fills  the  area,  so  that  those  members  who  ad- 
British  parliament  sit,  in  the  new  buildings  dress  the  house  from  the  first  row  of  benches 
for  their  use  at  Westminster,  are  probablj'  not  on  either  side,  make  use  of  it  for  their  papers, 
different  in  shape,  size,  or  internal  arrange-  At  the  end  behind  the  speaker's  chair  there  is 
ments,  from  the  old  apartments  which  they  a  small  gallery  for  the  use  of  reporters,  and  at 
occupied,  when  Mr.  Hatsell's  treatise  was  com-  the  opposite  end,  over  the  bar,  is  a  larger  one 
piled,  and  to  which  allusion  is  frequently  made  for  the  use  of  persons  introduced  by  the  speak- 
in  that  work.  The  chamber,  in  which  the  er,  or  members.  At  each  side  there  is  a  gal- 
house  of  commons  sits,  at  the  present  time,  is  lery  estendingrfrom  one  end  to  the  other,  and 
an  oblong  square,  extending  from  one  side  of  containing  a  single  row  of  seats  only,  for  the 
the  building  to  the  other,  with  the  bar  at  one  use  of  members.  Behind  the  reporters'  gal- 
end,  and  the  speaker's  chair  towards  and  near  lery,  there  is  a  seat  for  ladies,  separated  from 
the  other,  and  with  fixed  rows  of  benches,  or  the  house  by  the  partition  wall  at  that  end, 
seats  with  backs,  on  each  side.  In  the  area  which  is  here  partly  made  of  screen-work  of 
between  and  directly  in  front  of  the  speaker's  polished  brass,  through  which  the  occupants 
chair,  there  is  a  very  long  and  wide  table,  at  can  see  the  interior  of  the  house  and  heai 
the  upper  end  of  which  sit  the  clerk  and  his  the  debates,  without  themselves  being  sen 
assistant,  and  the  lower  end  of  which  is  occu-  These  galleries  are  approached  from  withont. 
pied  with  the  m,ace  resting  upon  its  frame.  •  J.  of  H.  29th  Cong.  Ist  Sess.  65. 
The  table  of  the  house  is  so  wide  that  it  nearly  s  J.  of  H.  27th  Cong.  2d  Sess.  27,  28. 


144  LEGISLATIVE   ASSEMBLIES.  [PaRT   IL 

made  for  the  use  of  Charles  I.  When  parliament  is  prorogued  or 
dissolved,  it  is  kept  at  the  jewel  office.  On  the  assembling  of 
parliament,  the  mace  is  brought  into  the  house  by  the  sergeant-at- 
arms,  and  placed  under  the  table  of  the  house,  where  it  remains 
untn  a  speaker  is  chosen,  and  then  it  is  placed  upon  the  table, 
where  it  is  always  put  while  the  house  is  sitting  and  the  speaker  is 
in  the  chair.  During  the  sitting  of  parliament,  and  adjournments 
thereof,  (for  however  long  a  time,)  the  speaker  has  the  keeping  of 
the  mace,  which  is  always  carried  before  him,  when  he  enters  the 
house  or  leaves  it ;  and  also  on  all  public  occasions.  The  mace 
is  then  borne  by  the  sergeant-at-arms  of  the  house  on  his  shoulder. 
When  the  mace  lies  upon  the  table  of  the  house,  the  assembly  is  a 
house ;  when  it  is  under  the  table,  the  house  is  in  committee  of  the 
whole  ;  when  the  mace  is  out  of  the  house,  (as,  when  the  speaker 
omits  to  attend  the  house  from  iUness  or  other  cause)  nothing  can 
be  done  but  to  adjourn.  When  the  mace  is  not  on  the  table,  but 
borne  by  the  sergeant  on  his  shoulder  in  the  house,  (as,  when 
messengers  from  the  house  of  lords  are  introduced,  or  when  a  wit- 
ness is  examined  at  the  bar  of  the  house,  or  a  person  accused,  or  an 
offender  is  brought  to  the  bar)  no  member,  except  the  speaker,  can 
say  a  word,  or  make  a  motion,  or  indicate  a  question  to  be  put  to 
a  witness,  but  the  speaker  alone  manages.  This  implement  is  in 
use  for  the  same  or  analogous  purposes  in  congress,  and  probably 
in  the  legislative  assemblies  of  some  of  the  States,  but  is  not  essen- 
tial to  the  regularity  of  proceeding.^ 

355.  An  essential  part  of  the  arrangements  for  the  transaction  of 
business  is  the  rail  or  bar,  by  which  the  members  are  separated 
from  persons  attending  the  assembly,  not  to  witness  the  proceed- 
ings, but  to  participate  in  them,  either  as  witnesses,  parties,  coun- 
sel, or  messejngers ;  but  which  is  also  made  movable,  in  order  to 
admit  the  ingress  and  egress  of  members.  In  the  house  of  lords, 
the  bar  is  a  rail  extending  from  one  side  to  the  other  of  the  room, 
and  dividing  it  into  two  unequal  portions.  In  the  house  of  com- 
mons and  in  our  large  assemblies,  the  bar  is  nothing  more  than  a 
rail  extending,  across  the  passage  way,  into  the  area  within  the 
seats,  and  does  not  in  fact  separate  the  members  from  persons 
attending.  The  "  bar  of  the  house  "  has,  in  this  country,  become 
more  a  metaphor  than  a  reality ;  the  expression  "  placed  at  the  bar," 
denoting  that  a  person  is  on  trial  before  the  assembly ;  and  to  be 

1  The  mace  must  not  be  confounded  with     uses  to  attract  the  attention  of  the  assembly 
the  small  hammer  of  wood,  ivory,  or  metal,     or  for  the  preservation  of  order. 
which  the  speaker  or  other  presidinp;  officer 


Chap.  III.]  tlace  and  manner  of  sitting.  145 

'»  heard  at  the  bar  "  meaning  only  that  some  person,  not  a  member, 
is  allowed  to  address  the  assembly.  It  is  essential,  however,  to  the 
orderly  conducting  of  the  business  of  a  legislative  assembly,  that 
the  members  should,  in  fact,  be  separated  from  other  persons 
attending,  or  should  have  the  means  of  such  separation  at  com- 
mand. Where  there  is  a  space  between  the  bar,  and  the 
walls  of  the  room  in  which  the  assembly  meets,  those  members 
only  are  said  to  be  present  in  the  assembly,  and  are  recognized  by 
the  presiding  officer,  as  members,  who  are  within  the  bar ;  or  where 
there  is  no  separation  by  means  of  an  actual  rail  or  bar,  within  the 
exterior  limits  of  the  seats  appropriated  to  members.  In  Eng- 
land, memljcrs  who  have  reports  to  make  from  committees,  or  biUs 
or  petitions  to  present,  or  messages  to  deliver  from  the  sovereign, 
go  down  from  their  places  in  the  house  for  the  purpose  to  the  bar, 
and  are  there  called  to  by  the  speaker.  According  to  our  practice, 
the  only  papers  delivered  at  the  bar  accompany  the  messages 
which  are  there  always  received  from  the  executive,  and  from  the 
other  branch. 


Section  IT  —  Opening,  Continuation,  and  Close,  of  the  Daily 

Sitting. 

356.  A  legislative  assembly,  having  once  met,  either  wdth  or 
without  a  quorum,  on  the  day  appointed  for  its  meeting,  continues 
to  meet  afterwards  regularly,  and  as  a  matter  of  course,  every  leg- 
islative day,  that  is  to  say,  every  day,  except  Sundays  and  such 
other  days,  (as,  for  example,  in  England,  Christmas  and  Good- 
Friday)  as,  by  the  law  and  usage  of  each  particular  State,  are 
accounted  as  holidays.^  But  though  these  days  are  not  legisla- 
tive, on  which  an  assembly  meets,  as  of  course,  or  on  which  it 
would  meet  unless  otherwise  ordered,  they  may  nevertheless  be 
made  legislative  days  by  the  assembly  itself.  Thus,  if  the  assembly 
sits  over  from  the  day  preceding,  or  appoints  them  beforehand  for  a 
meeting,  they  then  become  legislative  days.'-^  In  the  eastern,  and, 
probably  in  some  of  the  other  States,  Sunday  is  the  only  day, 
which  is  not  an  ordinary  legislative  day,  and  on  which  a  legislative 
assembly  does  not  meet,  as  a  matter  of  course. 

357.  Sundays,  and  the  other  days  above  mentioned,  being  legis- 
lative days  or  not  according  to  the  determination  of  the  assembly 

»  Whitelocke,  I.  219.  *  J-  of  H.  24th  Cong.  1st  Sess.  677 ;  Cong. 

Globe,  VI.  371;  Cong.  Globe,  ML  2-14. 

13 


146  legislati'V't;  assemblies.  [Part  11. 

they  are  always  reckoned  as  a  part,  or  so  many  days  of,  the  ses- 
sion ;  1  thus,  for  example,  the  members  draw  their  daily  pay  for 
these  as  much  as  for  any  other  days ;  and  when  it  is  provided  by 
constitution,  that  neither  house  shall  adjourn  for  more  than  a  given 
number  of  days,  without  the  consent  of  the  other ;  that  the  executive 
shall  return  a  bill  within  a  certain  number  of  days ;  these  days  are 
included  in  the  computation ;  but  where  the  rules  of  an  assembly 
require  that  certain  motions,  as,  for  example,  the  motion  for  recon- 
sideration, shall  be  made  within  a  fixed  number  of  days,  Sundays 
and  the  other  days  above  mentioned  are  included  or  not  in  the 
computation,  according  as  the  assembly  sits  or  not  on  those  days. 

358.  When  certain  days  in  the  week  are  set  apart  by  rule  for  the 
consideration  of  a  certain  class  of  business,  that  kind  of  business  is 
entitled  to  the  preference  on  those  days.  But  it  does  not  thereby 
lose  its  place  on  the  general  docket,  and  may  be  considered  on 
other  days.- 

359.  Where  the  assembly  has  a  clock  which  has  received  its 
sanction,  and  is  used  for  the  purpose  of  indicating  the  time,  the 
presiding  officer  ordinarily  goes  by  it  in  conducting  the  business  of 
the  house.-^ 

360.  It  not  unfrequently  happens,  that  the  daily  sifting  of  the 
assembly  on  one  day  is  prolonged  into  the  next  day,  in  the  course  of 
business,  and  without  any  previous  order  therefor.  In  this  case  the 
transition  of  time  is  to  be  noted  on  the  journal,  as  near  as  may  be, 
and  a  new  date  inserted,  and,  at  the  end  of  the  day's  sitting,  the 
true  day  to  which  the  house  stands  adjourned  is  put  down.^  It  is 
important,  on  many  occasions,  to  know  the  precise  day  on  which 
particular  proceedings  take  place.  Where  the  sitting  of  one  day 
is  prolonged,  in  this  manner,  into  the  next,  it  may  be  extended 
beyond  the  time  assigned  for  reading  the  journal  and  commencing 
the  regular  proceedings  of  the  last-mentioned  day ; ''  but  business  ■ 
which  is  in  order  only  on  the  day  when  the  sitting  commences,  and 
is  then  properly  taken  up  for  consideration,  ceases  to  be  in  order, 
and  goes  over  to  the  next  day  on  which  such  business  is  in  order, 
by  the  natural  expiration  of  the  day  on  which  it  is  taken  up.^ 

ij.  of  H.   31st  Cong.  Ifst  Sess.   226,  227;  twelve  o'clock  on   [Satimlayl  morning;"   at 

Cong.  Globe,  XIII.  70;  Cong.  Globe,  XVIII.  the  end  of  the  day's  sitting,  the  entry  is:  — 

1029.  "  And  then  the  house,  having  continued  to 

8  J.  of  H.  19th  Cong.  1st  Sess.  795.  sit  till  after    three    o'clock    on    [Saturday] 

3  Cong.  Globe,  XV.  1223.  morning,  adjourned  till  this  day." 

*  In  the  house  of  commons,  the  entry  on  the  *  Cong.  Globe,  VIII.  288. 

journal,  when  the  change  of  time  takes  place,  «  J.  of  H.  31st  Cong.   1st   Sess.  226,  227 

followed  by  a  new  date,  is  thus: — "and  the  577. 
house  having  continued    to    sit    until   aff«r 


Chap.  III.]  place  and  manner  of  sitting.  147 

361.  Where  the  number  necessary  to  form  a  quorum  of  a  legis- 
lative assembly  is  fixed,  without  the  presence  of  whom  no  business 
can  be  entered  upon  or  proceeded  with,  the  inability  extends  and 
applies  to  questions  of  adjournment  as  well  as  to  other  matters  of 
business  ;  and,  if  a  quorum  is  not  present,  no  question  of  adjourn- 
ment can  pro})erly  be  proposed  to  the  assembly  itself  for  its  decis- 
ion, for  it  is  not  then  in  a  condition  to  decide  any  question.  The 
only  thing  that  can  be  done,  in  such  an  emergency,  is,  for  the  pre- 
siding oHicer,  or  Ihe  clerk,  if  Ihe  former  is  not  present,  to  declare 
without  putting  the  question  thereupon,  that  the  assembly  stands 
adjourned  until  the  next  sitting  day.  This  is  as  effectual,  to  con- 
tinue the  session,  as  an  adjournment  on  question,  and  the  assembly 
is  as  regularly  appointed  to  meet  on  the  next  sitting  day  as  it 
would  be  by  its  own  order.  This  rule,  which  is  derived  from  the 
practice  of  the  house  of  commons,  only  applies  to  those  assembUes, 
which  like  that  house  have  a  fixed  quorum,  but  no  power  of  dis- 
pensing with  the  want  of  one,  or  of  proceeding  upon  any  thing  in 
its  absence.  The  States,  in  which  the  legislative  assemblies  are  of 
this  character,  and  to  which  consequently  the  rule  applies,  are  those 
of  New  Hampshire,  Vermont,  Massachusetts,  New  York,  and  North 
Carolina. 

362.  In  these  assemblies,  therefore,  the  chair  is  not  generally  to 
be  taken  by  the  presiding  officer,  and  the  assembly  called  to  order, 
until  a  quorum  is  present.  K  no  time  has  been  fixed  upon  before- 
hand for  the  meeting,  the  presiding  officer  should  wait  a  rea- 
sonable time ;  and,  then,  if  a  quorum  does  not  appear  to  be  present, 
he  should  take  the  chair  for  the  purpose,  and  declare  the  assembly 
adjourned  until  the  next  sitting  day,  without  a  question.^  If  the 
presiding  officer  should  not  happen  to  be  present,  the  declaration 
should  be  made  by  the  clerk.  In  this  case,  the  adjoui-nment  does 
not  take  place  in  virtue  of  any  act  of  the  members  assembled,  but 
in  virtue  of  the  principle,  that  the  assembly,  when  once  constituted, 
continues  as  of  course  to  meet  every  legislative  day,  until  dis- 
solved. K  an  hour  has  been  fixed  for  the  meetinar,  and  at  the 
expiration  of  that  hour,  a  sufficient  number  is  not  present,  the 
assembly  is  adjourned  until  the  next  sitting  day,  in  the  manner 
just  stated. 

363.  But  in  all  the  legislative  assemblies  of  this  country,  except 
those  in  the  States  above  enumerated,  the  rule  is  difierent.  In  the 
constitution  of  the  United  States,  and  in  those  of  the  other  States 

»  HatseU,  H.  173. 


148  LEGISLATIVE   ASSEMBLIES.  [P^mT    11. 

not  above  enumerated,  while  the  quorum  of  each  is  thereby  fixed, 
it  is  expressly  provided,  that  "  a  less  number  may  adjourn  from  day 
to  day."  In  these  assemblies,  therefore,  the  chair  may  be  taken 
precisely  at  the  moment  fixed  for  the  meeting  of  the  assembly, 
without  waiting  for  the  presence  of  a  quorum  ;  and  the  assembly, 
then,  however  few  there  may  be  present,  is  competent  to  adjourn 
itself  on  question,  to  the  next  sitting  day.  The  assembly,  being 
thus  competent  to  adjourn  itself,  or  not  to  adjourn,  as  the  members 
present  may  think  proper,  the  authority  of  the  presiding  officer  to 
declare  an  adjournment  without  a  question  is,  of  course,  super- 
seded. The  rule  of  the  house  of  representatives  of  the  United 
States  provides,  that  the  speaker  shall  take  the  chair,  precisely  at 
the  hour  to  which  the  house  stands  adjourned,  and  that  body  by 
the  constitution  has  authority  to  act  upon  the  question  of  adjourn- 
ment without  a  quorum. 

364.  It  appears  to  have  been  the  custom  of  the  house  of  com- 
mons, two  centuries  ago,  to  meet  at  a  fixed  hour,  generally  at  eight 
o'clock  in  the  morning;  to  proceed  to  business  of  importance  at 
nine  or  ten ;  and  to  adjourn  for  the  day,  by  twelve,  or  soon  after. 
This  practice  left  the  afternoons  for  the  meetings  of  committees, 
especially  what  were  called  the  grand  committees,  which  usually 
met  in  the  house.  But  within  the  last  century,  the  practice  of  sit- 
ting in  the  fore  part  of  the  day  has  gradually  given  place  to  the 
opposite  custom  of  sitting  in  the  afternoon  and  evening ;  and,  wdth 
the  latter  practice,  that  of  fixing  the  time  of  meeting  by  a  special 
order  has  also  been  discontinued.  The  sittings  of  the  commons  do 
not  now  commence  until  four  o'clock  in  the  afternoon. 

365.  This  change  in  the  time  of  sitting,  from  the  morning  to  the 
evening,  —  and  the  debates  frequently  hold  on  tiU  after  midnight, — 
is  owing  in  part  to  the  composition  of  the  assembly,  and  in  part  to 
a  change  in  the  usages  of  business  generally.  The  ministers,  who 
are  always  members,  are  occupied  in  the  morning  in  their  several 
offices ;  the  law-officers  of  the  crown,  who  are  usually  miembers, 
and  other  members,  who  are  also  of  the  legal  profession,  are  busied 
in  the  courts ;  persons  engaged  in  commerce  are  employed  in  their 
own  affairs  during  the  early  part  of  the  day ;  and  the  committees 
of  the  house,  besides  the  necessity  of  having  some  time  allowed 
them  for  their  sittings,  are  also  under  the  necessity  of  examining 
great  numbers  of  witnesses,  who  cannot  conveniently  attend  at 
any  other  time  than  during  the  day.^ 

1  Dumont,  219 


CnAr.    III.]  PLACE   AND   MANNER   OF   SITTING.  149 

366.  The  orifrin  of  the  present  practice  of  the  houf^e  of  com- 
mons, with  regard  to  the  commencement  of  the'daily  sitting,  being 
somewhat  curious,  as  well  as  instructive,  may  very  projx'rly  be 
mentioned.  The  steitutes  of  30th  Charles  II.  and  13th  William 
III.  having  provided  that  members  returned  to  fill  vacancies,  occur- 
ring after  the  commencement  of  the  session,  should  take  the  oaths 
in  the  house,  between  the  hours  of  nine  in  the  morning  and  four  in 
the  afternoon,  the  officers  of  the  house  have  considered  these  stat- 
utes as  imposing  upon  them  the  duty  of  attending  in  the  house, 
and  they  are  in  attendance  accordingly,  between  the  hours  named, 
for  the  purpose  of  the  oaths  being  administered  to  any  new  mem- 
bers that  may  present  themselves.  K  therefore  any  member  is 
introduced  between  those  hours,  for  the  purpose  of  being  sworn, 
the  speaker  immediately  takes  the  chair,  and  the  member  is  sworn, 
whether  a  quorum  is  present  or  not ;  inasmuch  as  it  is  -considered, 
that  a  rule,  laid  down  by  the  house  as  a  regulation  for  itself,  (and 
the  number  necessary  to  form  a  quorum  is  only  fLxed  by  a  declara- 
tion of  the  house)  cannot  supersede  the  directions  of  an  act  of  par- 
liament. When  the  chair  is  thus  taken  for  the  purpose  of  qualify- 
ing a  member,  without  a  quorum  being  present,  the  speaker 
continues  to  sit  in  the  chair  until  four  o'clock,  beyond  which  time 
no  new  member  can  be  introduced;  and,  then,  the  requisite  number 
not  appearing,  he  adjourns  the  house  without  a  question ;  if  forty 
members  should  then  be  present,  the  business  proceeds.  From  the 
requirements  of  the  statutes  alluded  to,  and  the  obligation  which 
they  are  considered  as  imposing  upon  the  officers  of  the  house,  to 
be  in  attendance  from  nine  to  four,  the  time  of  assembling  seems 
to  have  been  fixed  by  law  at  those  hours,  or  at  any  intermediate 
time  betw^een  those  hours,  and  by  usage  at  the  latest  of  the  two, 
namely,  at  four  o'clock. 

367.  The  time  fixed  or  agreed  upon  for  the  meeting  of  any 
assembly,  consisting  of  a  considerable  number  of  persons,  cannot 
ordinarily  be  considered  as  a  single  moment  or  point,  without  great 
and  manifest  inconvenience ;  and,  therefore,  unless  it  is  otherwise 
expressly  established,  it  would  seem,  that,  the  time  fixed  for  a  meet- 
ing ought  to  cover  a  certain  period  of  greater  or  less  duration ; 
which,  in  practice,  is  usually  from  the  hour  named  until  the  next. 
Thus,  the  house  of  commons  assembles  at  any  point  of  time, 
between  nine  and  four  o'clock;  a  meeting  called  for  a  certain  liour 
assembles  at  any  time  within  the  hour;  and,  consequently,  it  should 
seem,  that  where  a  particular  hour  is  fixed  for  the  assembfing  of  a 

13 


150  LEGISLATIVE   ASSEMBLIES.  [PaRT    II 

legislative  body,  it  should  not  be  adjourned  for  want  of  a  quorum, 
until  the  expiration  of  the  hour  named.^ 

368.  It  is  the  practice,  in  this  country,  by  a  standing  order, 
adopted  at  the  beginning  of  each  session,  to  fix  an  hour  for  com- 
mencing the  daily  sitting;  so,  that,  when  an  adjournment  takes 
place,  simply,  whether  by  a  vote  or  otherwise,  the  assembly  stands 
adjom-ned,  as  of  course,  until  that  hour  on  the  next  sitting  day. 
When  the  hour  of  assembling  is  not  thus  fixed,  the  time  should  be 
aoreed  upon  before  the  adjom-nment  each  day;  otherwise  the 
assembly  would  stand  adjourned  indefinitely,  or  until  the  next  sit- 
ting day  merely. 

369.  It  has  aheady  been  stated,  that  the  chair  is  not  to  be  taken 
for  the  purpose  of  proceeding  with  business,  or  for  any  other  pur- 
pose than  that  of  adjourning,  if  a  less  number  is  competent  to  do 
so,  until  a  quorum  is  present ;  so,  if  the  number  of  members  pres- 
ent, at  any  time  during  the  sitting,  falls  below  the  requisite  number, 
business  is  at  once  suspended.    K,  therefore,  it  appears  on  a  division, 
or  if  notice  is  taken  by  any  member,  that  a  quorum  is  not  present, 
it  then  becomes  the  immediate  duty  ^  of  the  presiding  officer  to 
count  the  members;    and  if  they  do  not  amount  to  a  quorum, 
to  suspend  aU   further    proceedings    until    the    requisite    number 
comes  in,  or,  to  adjourn  the  assembly  without  a  question,  until 
the  next  sitting  day.     If  the   assembly  is   one,  which   is   compe- 
tent to  adjourn  itself,  the  presiding   officer  has  no  authority  to 
declare  an  adjournment,  but  must  wait  for  a  motion  for  that  pur- 
pose.    In  counting  for  this  purpose,  the  presiding  officer,  if  he  is  a 
member,  reckons  himself,  and  includes  all  members  who  come  in 
after  the  counting  has  commenced.^     When  an  adjom-nment  takes 
place  in  the  house  of  commons,  for  want  of  a  quorum,  the  house 
is  said  to  be  counted  out.     A  quorum,  having  once  been  present, 
is  presumed  to  continue,  although  not  of  the  same  individuals,  until 
the  contrary  appears  in  the  manner  already  stated;  and,  hence, 
if  business  is  proceeded  in,  after  the  number  of  members  present 
is  in  fact  reduced  below  a  quorum,  the  vafidity  of  the  votes  agreed 
to  before  notice  is  taken,  and  the  assembly  counted,  cannot  be 
questioned.* 

1  See  BUnchard  v.  Walker,  Cushing's  Kc-     take  notice  of  the  deficiency  as  well  as  any 
ports  IV.  455.  o'^h^^"  member.   See  the  Pari.  Reg.  (2)  XLVII. 

2  The  presiding  officer  usually  remains  pas-      747. 

sive,  unless  the  want  of  a  quoram   appears,         ^  Hatsell,  II.  176. 

or  is  suggested  by  a  member;  though  there         *  It  has  been  said  to  be  the  practice,  in  the 

seems  to  be  no  good  reason  why  he  should  not     house  of  co-nmon=,  for  the  government  or  ad- 


Chap.  III.]  place  and  manner  of  sitting.  151 

370.  Whon,  upon  a  division,  it  appears,  that  a  quomm  is  not 
present,  the  question,  upon  which  such  division  occurs,  ordinarily 
remains  undecided ;  but,  when^  the  aggregate  of  the  votes  on  each 
side,  with  the  tellers  and  speaker,  make  up  a  quorum,  the  question 
13  decided.  Thus,  where  upon  a  division  in  the  house  of  commons, 
it  appeared,  that  there  were  twenty-seven  ayes  and  eight  noes, 
which,  with  the  four  tellers,  who  are  reckoned  as  voling,  and  the 
speaker,  msfde  up  the  number  of  forty,  which  is  the  numljcr  neces- 
sary to  constitute  a  quorum  of  the  house  of  commons,  the  question 
pending  was  held  to  be  thereby  decided.^ 

371.  The  practice,  with  us,  in  regard  to  ihe  opening  of  the  daily 
sitting,  seems  to  be  somewhat  different  from  that  in  parliament. 
In  the  commons,  prayers  are  read  before  the  speaker  takes  the  chair, 
and  the  chair  is  not  taken,  except  for  a  particular  purpose,  until 
forty  members  are  present.  With  us  the  chair  is  to  be  taken  punc- 
tually at  the  hour  to  which  the  assembly  stands  adjourned,  if  a  quo- 
rum is  then  present,  or  if  a  number  less  has  the  right  of  adjourn- 
ment ;  otherwise  the  presiding  officer  waits  until  the  requisite  num- 
ber is  present ;  prayers  are  then  said ;  the  journal  of  the  day 
preceding  is  read ;  and  the  business  of  the  day  proceeds.  In  the 
house  of  representatives  of  the  United  States,  the  course  is  that  the 
chair  is  taken  punctually  at  the  hour ;  the  members  are  immediately 
called  to  order ;  the  chaplain  performs  the  duty  of  his  office ;  if  a 
quorum  is  not  present,  such  proceedings  take  place,  in  pursuance  of 
the  rules  of  the  house,  as  may  be  proper  to  compel  the  attendance 
of  absent  members;  if  a  quorum  is  present,  the  journal  of  the  pre- 
ceding day  is  read;  and  then  the  business  of  the  day  proceeds 
according  to  the  established  order.  When  the  business  has  been 
completed,  or  the  usual  time  of  sitting  has  been  exhausted,  or  the 
members  are  weary  of  proceeding,  or  wish  to  put  an  end  for  the 
time  to  a  particular  matter  of  business,  an  adjournment  takes  place. 

ministration,  that  is,  the  ministers,  to  take  on  some  otlier  day;  wliich,  as  every  day  is 
measures  to  prevent  the  formation  of  a  house,  usually  appropriated  in  advance,  for  a  consid- 
on  a  particular  day,  or  to  reduce  the  number  erable  period,  is  diflScult,  if  not  impossible, 
present  below  n  quorum,  on  particular  occa-  This  practice  is  not  likely  to  occur  in  the  two 
sions,  with  a  view  to  put  oil' or  suppress  a  dis-  houses  of  congress,  or  in  any  of  the  legislative 
cussion,  which  they  wish  to  get  rid  of,  with-  assemblies  of  this  country,  in  which  a  less 
out  putting  it  down  by  a  direct  vote.  The  number  than  a  quorum  has  the  right  of  ad- 
business  assigned  beforehand  for  the  day,  on  joumment. 

which  the  sitting  is  thus  prevented  or  termi-  ^  Pari.   Reg.   (2)   XII.   461;    Comm.   Jour 

Dated,  falls  to  the  ground,  and  must  be  renewed  XXXIX.  845. 


152  LEGISLATIVE   ASSEMBLIES.  [PaRT    II. 


Section  III.      Personal   Deportment   of   the    Members,  whilst 

THE  Assembly  is  sitting. 

372.  In  parliament,  the  presiding  officers  and  clerks  of  both 
branches,  like  the  judges  and  other  officers  of  courts  of  justice, 
appear  m  gowns  and  wigs,  and  sit  uncovered.  The  members,  ex- 
cept on  occasions  of  state,  appear  in  their  ordinary  costume,^  and 
also  sit  covered.  If  a  member  comes  in  or  goes  out,  or  moves  from 
one  part  of  the  chamber  to  another,  while  the  house  is  sitting,  he 
takes  off  his  hat,  and  bows  in  passing  the  speaker,  who  bows  in 
retrun.  In  our  assemblies,  the  members  and  officers  wear  their 
ordinary  costume,  and,  with  scarcely  an  exception,  sit  uncovered. 
It  is  usual,  also,  to  observe  the  same  ceremonial  in  going  out,  com- 
ing in,  and  moving  about  the  house,  as  is  practised  in  the  house  of 
commons. 

373.  When  the  presiding  officer  has  taken  the  chair,  every  mem- 
ber is  to  be  seated  in  his  place,  and  to  give  his  attention  to  what- 
ever business  may  be  presented,  without  departing  unnecessarily 
from  the  house,  mitil  the  sitting  for  the  day  is  at  an  end  ;  and  while 
business  is  proceeding,  as,  for  example,  when  the  presiding  officer 
or  clerk  is  reading  a  bill  or  other  paper, —  or  a  member  is  speaking, 
—  or  the  members  are  engaged  in  voting,  —  it  is  the  especial  duty 
of  every  member  to  abstain  from  all  whispering,  speaking,  moving 
about,  or  other  conduct  which  may  be  to  the  annoyance  and  dis- 
tm-bance  of  the  house,  or  of  any  member.  For  the  purpose  of 
obtaining  and  securing  the  observance  of  order  and  decorum  among 
the  members  of  a  legislative  assembly,  whilst  they  are  sitting  as 
such,  the  presiding  officer  is  invested  with  authority  to  suspend  aU 
ordinary  business,  until  order  is  restored ;  ^  and,  if  order  cannot  be 
obtained  in  any  other  way,  to  call  men  by  their  names,^  which  is 
equivalent  to  a  complaint  against  them.^  Besides  these  rules, 
which  are  general,  and  apply  to  aU  assemblies,  every  one  has  regu- 
lations of  its  own,  which  are  specially  adapted  to  its  peculiar 
circumstances.  The  rules  relating  to  the  deportment  of  members 
are  founded  in  the  principle  of  the  equality  of  their  rights  and 
duties.      Every  member  has  an  equal  right  with  every  other,  to 

1  A3  an  exception  to  this  rule,  Mr.  Hatsell  «  Cong.  Globe,  XVHL   1007 ;    Cong.  Globe, 

is  CiueM  to  inform  his  reader,  that  it  is  con-  XXI.  1749,  1776;  Cong.  Globe,  XXL  1923. 

trary  to  usage  for  newly  elected  members,  on  *  Cong.  Globe,  XXL  1776,  1923. 

being  introduced  to  take  the  oaths,  to  appear  *  May,  261;  Post,  1606. 
in  boots.    Hatsell,  XL  85. 


Chap.  III.]  place  and  manner  of  sitting.  ]53 

bring  forward  and  advocate  the  adoption  of  whatever  measures  he 
may  think  conducive  to  the  public  interest;  and,  consequenlly, 
every  one  must  exercise  his  individual  right  in  such  a  manner,  as  to 
admit  of  a  similar  exercise  on  the  part  of  others. 


Section  IV.    Manner  of  Speaking. 

374.  "Whenever  a  member  desires  to  make  any  communication 
to  the  assembly,  —  as  to  present  a  petition,  make  a  report,  propose 
a  motion,  or  participate  in  a  debate, —  he  rises  in  his  place,  and, 
standing  uncovered,  addresses  himself  to  the  presiding  ofTicer  by 
his  title,  saying  Mr.  Speaker,  or  Mr.  President,  or  ]\Ir.  Chairman,  as 
the  case  may  be ;  the  member  then  pauses  for  a  moment,  until  the 
presiding  officer  calls  to  him  by  his  name  or  designates  him  by  his 
locality,  or,  in  some  other  way,  recognizes  him  as  addressing  the 
chair;  this  being  done  (but  not  before)  the  member  proceeds. 

375.  When  two  or  more  members  rise  at  or  about  the  same  time, 
it  is  sometimes  difficult  to  determine  which  of  them  shall  be  heard. 
In  the  lords,  the  authority  of  the  presiding  officer  being  limited, — 
the  right  of  a  peer  to  speak  depends  solely  upon  the  will  of  the 
house ;  and  when  tsvo  rise  at  the  same  time,  unless  one  or  the  other 
immediately  gives  way,  the  house  calls  upon  one  of  them  by 
name  to  speak ;  but,  if  each  is  supported  by  a  party,  there  is  no 
alternative  but  to  decide  the  matter  by  a  question  and  a  vote  of  the 
house  thereupon. 

376.  In  the  house  of  commons,  the  speaker  calls  upon  the  mem- 
ber, who  was  first  observed  by  him.  But  the  right  of  a  member  to 
be  heard,  in  preference  to  others,  depends,  in  reality,  upon  the  fact 
of  his  having  been  the  first  to  rise,  and  not  upon  his  being  first  in  the 
speaker's  eye.  K  the  speaker  should  happen  to  overlook  the  mem- 
ber, who  in  fact  was  the  first  to  rise,  it  is  not  unusual  for  members 
to  call  out  the  name  of  the  member,  who,  in  their  opinion,  is  enti- 
tled to  be  heard ;  and  when  the  general  voice  of  the  house  appears 
to  give  him  the  preference,  the  member  called  upon  by  the  speaker 
usually  gives  way.  If  the  dispute  should  not  be  settled  in  this 
manner,  a  motion  may  be  made  and  a  question  put,  that  a  particu- 
lar member  be  heard. 

377.  In  the  legislative  assemblies  of  this  country,  it  is  for  the 
most  part  provided  by  a  rule,  as,  for  example,  in  the  house  of  rep- 
resentatives in  congress,  that  "  when  two  or  more  members  happen 


154  LEGISLATIVE  ASSEMBLIES.  [PaRT   IL 

to  rise  at  once,  the  speaker  shall  name  the  member  who  is  first  to 
speak."  'Where  there  is  no  rule  established,  of  this  kind,  the  par- 
liamentary rule  just  explained  applies.  To  the  rule,  that  the  mem- 
ber first  up  is  to  speak  in  preference  to  others,  there  are  several 
exceptions,  which  wdll  be  explained  in  another  part  of  this  work. 

878.  Li  deliberative  assemblies  of  any  considerable  size,  it  is  the 
rule,  that  members  should  speak  standing  in  their  places ;  ^  but  this 
rule  admits  of  an  exception  in  the  case  of  old,  infirm,  or  sick  mem- 
bers, who,  by  the  indulgence  of  the  assembly,  are  allowed  to  speak 
sitting,^  or  in  more  convenient  places  than  their  accustomed  seats.^ 
The  advantages  ascribed  to  the  former  position  are,  that  the  mem- 
ber speaking  has  his  body  and  limbs  at  better  command ;  his  voice 
is  more  free  and  varied ;  he  is  in  a  situation  to  exercise  a  greater 
influence  over  his  hearers ;  and  he  better  perceives  the  impression 
produced  by  his  speech.  The  close  of  his  discourse  is  also  more 
distinctly  marked  by  the  movement  of  taking  his  seat,  than  by 
merely  ceasing  to  speak.'^  This  rule  is  more  applicable  to  a  large 
than  a  small  assembly,  and  is  not  necessary  to  be  observed  in  com- 
mittees and  similar  bodies  consisting  of  but  few  members. 

379.  In  the  French  and  some  other  legislative  assembHes,  on  the 
continent  of  Europe,  a  little  platform  or  desk,  called  the  tribune,  is 
provided,  from  which  members  are  required  to  speak,  when  they 
address  the  assembly.^  This  practice,  though  attended  or  supposed 
to  be  with  some  advantages,  has  never  been  adopted  in  England 
or  here,  or  any  practice  analogous  to  it,  except  that  in  the  house  of 
representatives  of  the  United  States  and  probably  in  other  legisla- 
tive assemblies,  the  members  are  allowed,  if  they  desire  it,  to 
address  the  house  fi-om  the  clerk's  desk,  or  from  a  place  near 
the  speaker's  chair  in  preference  to  their  own  seats. 

380.  It  is  a  general  rule,  also,  in  speaking,  that  the  member 
speaking  should  address  himself  to  the  presiding  officer,  and  not  to 
the  assembly  in  general.  This  is  the  usage  of  the  house  of  com- 
mons, from  whence  it  has  been  introduced  into  the  legislative 
assemblies  of  the  United  States.  The  advantages  of  this  practice, 
which  is  admitted  to  be  exceedingly  proper  in  a  numerous  assem- 
bly, are  much  more  easily  felt  than  analyzed  and  described.'^     In 

1  May,  240.  Journals,  LXIV.  167;  Hans.  (3)  LXVII.  658, 

*  The  motion  for  this  purpose,  whether  gen-  Same,  LXXVI.  542. 

eral,  or  for  a  particular  occasion,  may  be  made  *  Dumont,  136. 

by  the  member  himself  or  another.     See  Han-  ^  The  use  of  the  tribune  is  now  dispensed 

sard's  Debates,  (1st   Series,)  V.  793;  Same,  with  in  France. 

VIL  617.  '  Dumont,  164. 

3  Hatsell's  Precedents,  H.  104,  107;     Lord 


Chap.  IIJ.]  formalities  of  proceeding.  155 

the  house  of  lordH,  this  rule  does  not  prevail.     Members,  in  speak- 
ing, address  themselves  directly  to  the  house. 

381.  A  third  rule,  not  less  essential  in  point  of  decorum,  i?,  that, 
in  speaking,  members  are  not  to  be  spoken  of  or  alluded  to  by  their 
names,  but  to  be  respectfully  described  in  some  other  manner,  or 
by  some  circumlocution,  as,  for  example,  the  member  on  the  right 
or  left, -^ the  gentleman  who  spoke  last, —  the  member  from  such  a 
place.  The  purpose  of  this  rule  is,  to  guard  as  much  as  possible 
against  the  excitement  of  all  personal  feeling,  either  of  favor  or  of 
hostility,  by  separating,  as  it  were,  the  political  from  the  personal 
character  of  each  member,  and  considering  the  former  only  in  the 
discussion.^ 


Section  V.  Of  the  several  Forms  of  taking  the  Question,  in 

ORDER  to   ascertain   THE    SeNSE   OF  A   LEGISLATIVE    ASSEMBLY. 

382.  In  order  to  ascertain  the  sense  of  the  assembly,  in  reference 
to  any  subject,  that  subject  must  be  propounded  to  it,  in  the  form 
of  a  question,  to  be  answered  simply  in  the  atfirmative  or  negative^ 
by  each  individual  member.  The  proceeding  for  this  pur}X)se, 
which  is  called  taking  the  question,  varies  considerably  as  to  its 
form  in  different  assemblies.  It  will  be  convenient  to  describe,  in 
the  first  place,  the  forms  which  are  used  in  the  two  houses  of  par- 
liament, and  which  to  a  greater  or  less  extent  prevail  with  us,  and 
then  those  which  are  peculiar  to  the  United  States.^ 

383.  There  is  one  mode,  however,  of  ascertaining  the  sense  of 
an  assembly,  which  is  common  to  all,  and  which  may  therefore 
properly  be  first  stated.  The  opinion  of  an  assembly  being  suffi- 
ciently known,  in  many  cases,  by  in-egular  and  informal  manifesta- 
tions of  it,  and  being  safely  taken  for  granted  in  many  others,  in 
wliich  it  cannot  reasonably  be  supposed,  that  there  is  any  ground 
for  a  difference  of  opinion,  it  has  not  been  found  necessary,  in  prac- 
tice, to  propose  and  take  a  formal  question,  in  all  cases.  This 
mode  of  proceeding  is,  perhaps  oftenest,  though  not  exclusively, 
adopted,  in  reference  to  those  merely  formal  matters,  in  which  it  is 
not  deemed  necessary  that  there  should  even  be  a  motion  made 
and  when   judiciously  and  discreetly  practised  by  the  presiding 

^  Dumont,  166.  lative    assembly    is    conducted.      They    are 

«  The  different  methods  of  taking  the  ques-  mentioned,  again,  in  the  sixth  part,  in  con- 

tion   are  liere   described,   as   a  part  of    the  nection  with  the  rules  for  their  practical  appli- 

mechanism  by  which  the  business  of  a  legis-  cation. 


156  LEGISLATIVE   ASSEMBLIES.  [PaRT    II. 

officer,  for  it  depends  entirely  on  him,  it  is  no  doubt  productive  of 
great  convenience  to  the  assembly. 

384.  When  this  mode  is  adopted,  the  question  is  not  put  for 
those  who  are  on  the  one  side  or  on  the  other  to  declare  them- 
selves, but  simply,  is  it  the  pleasure  of  the  assembly,  that  such  or 
such  a  thing  be  done  ?  or  "  If  there  is  no  objection,  it  will  be  so 
ordered,"  and  if  no  objection  is  made  or  dissent  offered,  then  the 
thing  is  considered  as  ordered  or  voted,  without  putting  the  ques- 
tion in  any  other  form.  For  example,  when  a  message  is  an- 
nounced, in  the  house  of  commons,  it  is  not  usual  for  a  motion  to 
be  made  and  a  question  put  in  a  formal  manner,  for  admitting  the 
messengers ;  but  the  speaker  simply  says  at  once,  Is  it  the  pleasure 
of  the  house,  that  the  messengers  be  called  in  ?  and  if  no  member 
objects,  they  are  immediately  introduced  without  further  question. 
If,  in  any  such  case,  objection  should  be  made,  even  by  a  single 
member,  the  question  should  either  be  put  in  the  usual  form ;  or, 
perhaps  it  might  be  more  proper,  in  some  cases,  where  no  motion 
had  in  fact  been  made,  for  the  presiding  officer  to  require  one  to  be 
regularly  made  and  seconded,  before  putting  the  question. 

385.  In  parliament,  a  question  not  informally  decided  is  always 
taken  in  the  first  instance  by  the  voices.  The  following  is  the 
method  practised  in  the  house  of  commons.  The  question  being 
stated  by  the  speaker,  he  first  puts  it  in  the  affimative,  namely :  — 
As  many  as  are  of  opinion  that,  —  repeating  the  words  of  the  ques- 
tion, —  say  aye  ;  and  immediately  aU  the  members  who  are  of  that 
opinion  answer  with  one  voice,  aye ;  the  speaker  then  puts  the 
question  negatively :  —  As  many  as  are  of  a  different  opinion,  say  no ; 
and,  thereupon,  aU  the  members  who  are  of  that  opinion  answer 
no.  The  speaker  judges  by  his  ear  which  side  has  "  the  more 
voices,"  and  decides  accordingly  that  the  ayes  have  it,  or  the  Tioes 
have  it,  as  the  case  may  be. 

386.  K  the  speaker  is  doubtful  about  the  majority  of  the  voices, 
he  may  put  the  question  a  second  or  even  a  third  time  in  the  same 
manner ;  but,  if,  having  decided  according  to  his  judgment,  any 
member  rises  and  declares,  that  he  believes  the  ayes  or  noes  (which- 
ever it  may  be)  have  it,  contrary  to  the  speaker's  opinion,  Ihen  the 
speaker  directs  the  house  to  divide,  in  order  that  the  number  on 
either  side  may  be  counted.  The  decision  of  the  speaker  must  be 
questioned  immediately,  so  as  to  make  a  part  of  the  same  pro- 
ceeding ;  for,  if  any  new  motion  is  made,i  or  if  a  member,  who  was 

1  ScobeU,  24. 


Chap.  TIL]  formalities  of  proceeding.  1^)7 

not  in  the  house,  when  the  question  was  taken,  comes  into  it,^  after 
the  declaration  is  made,  and  before  it  is  questioned,  it  is  then  too 
late  to  contradict  the  speaker  and  divide  the  house.  After  a  divis- 
ion has  been  called  for,  it  must  go  on,  unless  all  agree  to  waive  it 
before  any  go  out. 

387.  The  speaker's  decision  cannot  be  questioned,  where  the 
voices  are  given  only  on  one  side,  and  the  speaker  declares  on  that 
side.  A  motion  being  declared  by  the  speaker  to  be  negatived, 
some  voices  called  out  that  "  the  ayes  have  it "  after  the  speaker 
had  decided,  but  the  speaker  said  they  were  too  late,  for  not 
one  "aye"  had  been  uttered  when  he  put  the  question.^  The 
reason  is,  that  the  purpose  of  dividing  is  to  ascertain  what  number 
of  members  gave  their  voices  on  the  one  side  and  on  the  other ; 
and,  consequently,  if  voices  are  given  only  on  one  side,  and  the 
speaker  declares  the  vote  carried  on  that  side,  no  division  can  take 
place,  for  there  is  in  fact  only  one  side. 

388.  Before  proceeding  to  a  division,  and,  indeed,  before  a  ques- 
tion is  put,  in  the  first  instance,  upon  which  it  is  known  that  a 
division  will  be  called  for,  the  speaker  directs  the  sergeant-at-arms 
to  clear  the  house  of  strangers  and  to  shut  the  doors.  He  then 
appoints  two  members,  on  each  side,  as  tellers,"'  to  count  the  house ; 
but,  if,  on  naming  the  tellers,  it  appears  that  there  is  but  one  mem- 
ber on  one  side  of  the  question,  and,  consequently,  that  two  tellers 
cannot  be  appointed  on  that  side,  the  division  cannot  go  on,  and 
the  speaker  declares  on  the  other  side.* 

389.  The  purpose  of  a  division  is  not  so  much  to  enable  mem- 
bers to  vote,  as  it  is  to  ascertain  how  they  have  aheady  declared 
themselves  by  their  voices ;  and,  therefore,  if  a  member,  when  the 
voices  are  given,  declares  himself  with  the  ayes  or  the  noes,  he 
cannot  be  permitted,  on  the  division,  to  vote  with  the  other  side ; 
but  if  he  does  so,  and  notice  is  taken  of  the  fact,  his  vote  will  be 
counted  on  the  side  for  which  he  gave  his  voice.  So  if  a  member, 
after  the  voices  are  given,  calls  out  that,  "  the  noes  have  it,"  or 
"  the  ayes  have  it,"  contrary  to  the  determination  of  the  speaker, 
he  will  be  considered  as  giving  his  vote  on  that  side.° 

390.  The  tellers  being  appointed,  the  question  is  again  stated, 
and  the  speaker  directs  the  house  to  divide.     Previous  to  the  year 

*  Hatsell,  II.  194.  division,  it  was  the  practice  for  distinguished 

*  Hansard  (3),  XVH.  194.  members,  to  request  to  be  appointed  tellers, 
»  Hatsell,  n.  201.                                                 in  order  that  their  names  might  be  entered  on 

*  Formerly,  when  there  was  no  mode  in  use     the  journal,  and  a  record  of  their  opinion  be 
for  preserving  and  publishing  the  names  of     thus  preserved. 

members  voting  on  the  different  sides  on  a         *  May,  225. 

14 


158  LEGISLATIVE   ASSEMBLIES.  [PaRT   U. 

1836,  the  manner  of  di^dding  was  as  follows.  The  speaker  directed 
one  party,  generally  the  ayes,  to  go  forth  into  the  lobby,  and  the 
other  to  remain  in  the  house.  The  ayes  having  gone  out,  the 
tellers,  then,  each  with  a  staff  in  his  hand,  counted  first  the  num- 
bers who  remained  sitting  in  the  house ;  and,  when  they  were  all 
agreed,  delivered  in  the  number  at  the  table,  to  the  clerk,  in  order 
to  prevent  any  dispute  afterwards.  Those  in  the  house  having 
been  counted,  the  door  was  opened,  and  the  members  who  went 
forth  came  in,  and  were  counted  by  the  tellers  standing  within  the 
door,  tw"0  on  each  side.  Since  the  year  1836,  a  different  mode  has 
been  in  use,  which  has  superseded  the  old  one.  Two  lobbies,  one  at 
each  end  of  the  house,  are  employed  for  the  purpose,  and  the  tellers 
being  appointed,  the  speaker  then  sends  one  party  into  each  lobby. 
Two  clerks  are  stationed  at  each  of  the  entrances  from  the  lobbies 
to  the  house,  holding  lists  of  the  members  arranged  in  alphabetical 
order,  printed  upon  large  sheets  of  thick  pasteboard,  so  as  to  avoid 
the  delay  and  trouble  of  turning  over  pages.  The  members  then 
pass  into  the  house  again,  first  one  side  and  then  the  other,  and,  as 
they  pass,  the  clerks  place  a  mark  against  each  of  their  names. 
The  tellers  ascertain  the  numbers  by  counting  the  marks  on  each 
sheet.i 

391.  Under  the  old  mode,  it  was  not  always  the  case,  that  the 
ayes  went  forth,  nor  was  it  optional  with  the  speaker  which  side  to 
send  forth.  The  rule  was,  that  those  who  were  for  an  innovation 
or  alteration  of  that,  which,  by  presumption,  is  well  enough,  untH 
it  is  actually  resolved  to  the  contrary,  ought  to  undergo  the  trouble 
and  disadvantage,  if  it  should  happen  to  be  any,  of  going  forth, 
when  a  division  takes  place.  This  rule,  when  the  question  was  upon 
passing  a  bill,  required  the  affirmatives  to  go  out;  but,  upon  other 
questions,  sometimes  the  one  side  and  sometimes  the  other ;  and  the 
application  of  the  rule  frequently  gave  rise  to  embarrassment  and 
difficulty.  The  party,  which  remained  in  the  house,  were  supposed 
to  have  the  advantage,  where  but  little  interest  was  felt  in  the  fate 
of  a  measure ;  as  they  would,  in  such  a  case,  probably  have  with 
them  all  the  indolent,  the  indifferent,  and  the  inattentive.^ 

392.  When  the  house  has  been  counted,  or  told,  as  the  expression 
is,  and  the  tellers  are  agreed  upon  the  numbers,  they  all  place  them- 
selves at  the  bar,  those  who  have  told  on  the  part  of  the  majority 
on  the  right  hand,  and  the  others  on  the  left,  and  then  come  from 
thence  up  to  the  table  together  (bowing  to  the  house  three  times, 

1  May,  278,  274,  275.  «  See  Jefferson's  Manual,  Sec.  XLL 


Chap.  III.]  formalities  of  proceeding.  159 

once  at  the  bar,  again  at  the  middle  of  the  house,  and  the  third 
time  when  Ihey  have  come  up  to  the  table)  and  the  teller  on  the 
right  hand  declares  to  the  speaker  the  number  of  the  ayes  and  of 
the  noes  ;  which  having  done,  the  tellers  withdraw  to  iheir  places, 
with  the  same  ceremony,  and  the  speaker  then  reports  the  numbers, 
and  declares  the  result  to  the  house.  When  the  numbers  are 
equal,  the  tellers  come  up  to  the  table  "  mixed,"  as  it  is  called, 
instead  of  two  on  a  side ;  and  the  speaker,  having  reported  the 
numbers,  gives  his  own  aye  or  wo,  together  with  his  reasons,  if  he 
thinks  proper,  and  then  declares  the  determination  of  the  house.^ 
Until  the  declaration  is  thus  made  by  the  speaker,  it  is  the  duty  of 
the  sergeant-at-arms  and  other  officers,  to  keep  the  avenues  to  the 
house  closed,  so  as  to  prevent  members  from  coming  in  or  going 
out. 

393.  Every  member,  who  is  in  the  house  when  a  question  is 
stated,  must  remain  and  give  his  vote,  and  cannot  be  permitted  to 
withdraw ;  and,  for  this  purpose,  every  room,  passage,  gallery,  or 
other  place,  to  which  there  is  no  access,  except  through  the  housCj 
is  considered  as  a  part  of  it ;  but,  if  any  member,  in  consequence 
of  not  being  in  the  body  of  the  house,  does  not  hear  the  question 
stated,  he  may,  if  called  upon  to  vote,  demand  to  have  it  stated  to 
him. 

394.  The  couA-erse  of  the  rule  above  stated  also  holds ;  no  mem- 
ber is  permitted  to  vote,  on  the  division,  unless  he  is  in  the  house 
when  the  question  is  put;  and  whenever  it  is  ascertained,  that 
members  have  voted,  who  were  not  in  the  house  when  the  question 
was  put,  whether  during  the  division,  or  before  the  numbers  are 
reported,  or  after  they  are  declared,  or  even  several  days  after  the 
division,  the  votes  of  such  members  will  be  disallowed,  and  the 
numbers  cancelled.^ 

395.  It  sometimes  happens,  that  several  questions  are  pending 
at  the  same  time,  which  are  to  be  taken  consecutively,  as  where  an 
amendment,  or  the  previous  question,  is  moved  on  a  main  question, 
and  a  division  takes  place  on  the  first  question,  and  is  expected  to 
take  place  on  the  others.  In  such  a  case,  members  who  are  not  in 
the  house,  and  consequently  do  not  vote  on  the  amendment  or 
previous  question,  are  nevertheless  entitled  to  vote  on  the  main 
question,  and  to  be  admitted  to  the  house  for  that  purpose.  It  is 
necessary,  therefore,  after  the  first  division,  and  before  proceeding 

»  Hatsell,  n.  202;  Scobell,  26.  =  May,  267,  2C8.     Concerning  the  disallow- 

ing of  votes,  see  Post,  §  1836. 


160  LEGISLATIVE    ASSEMBLIES.  [PaRT    IL 

to  another,  that  the  doors  should  be  opened  for  the  ddmission  of 
members.^ 

396.  Whilst  the  tellers  are  counting  the  house,  on  a  division, 
members  should  be  silent,  that  the  tellers  may  not  be  interrupted ; 
for,  if  any  one  of  the  tellers  thinks  there  is  a  mistake,  or  if  they  are 
not  all  agreed,  they  must  begin  and  count  again.  For  the  same 
reason,  no  member  should  remove  from  his  place,  when  they  have 
begun ;  nor  can  any  member  be  counted,  standing  or  sitting  on  tha 
steps,  or  in  the  passage  ways,  or  in  the  area  in  front  of  the  chair, 
but  only  in  his  seat.^  If  a  mistake  is  made  in  the  report  of  the 
numbers,  the  tellers  being  agreed,  the  mistake  may  be  corrected ; 
but,  if  any  difficulty  or  irregularity  occurs,  —  as,  where  a  stranger 
was  inadvertently  counted,  —  there  must  be  a  new  division,  if  any 
member  insists  upon  it.^ 

897.  If  any  question  arises,  in  point  of  order,  or  any  difficulty 
occurs,  which  calls  for  the  interference  of  the  speaker,  during  a 
division,  the  speaker  must  take  upon  himself  to  decide  it  "  peremp- 
torily ;  "  for,  as  it  cannot  be  decided  by  the  house,  without  having 
a  division  upon  a  division,  there  is  no  other  practical  way  of  set- 
tling the  question,  without  great  delay  and  inconvenience ;  and,  in 
such  a  case,  therefore,  the  determination  of  the  speaker  must  be 
implicitly  submitted  to,  until  the  division  is  over  and  the  result 
ascertained  and  declared.  The  decision  may  then  be  revised  by 
the  house,  and,  if  irregular  or  partial,  may  be  corrected  either  by 
altering  the  numbers  or  by  a  new  division.  For  the  purpose  of 
forming  a  determination  upon  questions  arising  in  the  course  of  a 
division,  though  there  can  regularly  be  no  debate,  the  speaker  may 
allow  members  to  express  their  opinions  sitting  in  their  seats,  with 
their  hats  on  in  order  to  avoid  even  the  appearance  of  debate ;  but 
this  cannot  be  done  without  the  speaker's  leave,  and  must  be 
brought  to  a  close  at  his  pleasure.^ 

398.  One  of  the  most  remarkable  occasions,  on  which  the 
speaker  of  the  house  of  commons  was  ever  called  upon  to  exercise 
the  summary  authority  with  which  he  is  invested  during  a  division, 
occurred  in  1780,  on  the  presentation  of  a  petition  by  Lord  George 
Gordon,  praying  for  a  repeal  of  the  act  which  had  just  passed  in 
favor  of  the  CathoUcs.  A  motion  being  made  for  the  house  to 
resolve  itself  into  a  committee  of  the  whole  to  consider  the  petition 
a  division  took  place,  and  the  yeas  were  directed  to  go  forth  into 

1  May,  270,  271.  »  Hatsell,  II.  201. 

2  Hatsell,  II.  198.  *  Hatsell,  H.  199. 


CUAP.  III.]  FORMALITIES   OF   PROCEEDING.  161 

the  lobby.  It  was  found  impossible,  however,  for  the  members  to 
leave  the  house  on  account  of  a  tumultuous  crowd  of  people  who 
had  taken  possession  of  the  lobby.  This  being  reported  by  the 
sergeant-at-arms,  the  speaker  directed  him  to  send  for  the  sheriff 
and  magistrates  of  the  county  of  Middlesex,  and  city  of  Westmin- 
ster, within  the  limits  of  which  parliament  was  sitting,  to  attend 
the  house  immediately.  After  some  time,  several  of  these  officers 
attending  in  the  house  according  to  order,  the  speaker  informed 
them  of  the  circumstances,  and  that  it  was  their  duty  to  preserve 
the  peace,  and  directed  them  to  use  their  utmost  exertions  to 
restore  peace  and  good  order.  They  then  withdrew,  and  having 
succeeded  in  clearing  the  lobby  the  division  proceeded.  During  all 
this  time,  it  was  the  duty  of  the  members  to  remain  in  their  places, 
without  doing  or  attempting  any  other  business,  while  the  speaker 
gave  the  necessary  orders,  without  any  previous  vote  or  direc- 
tion.^ 

399.  The  rule  allowing  members  to  speak  sitting  and  covered 
during  a  division  is  confijied  to  questions  of  order,  referred  to  the 
decision  of  the  speaker,  and  does  not  apply  to  distinct  motions  pro- 
posed for  the  adoption  of  the  house ;  as  for  example,  where  a  mo- 
tion was  made,  after  the  numbers  had  been  reported  on  a  division, 
but  had  not  been  declared  by  the  speaker,  that  the  votes  of  certain 
members  should  be  disallowed,  on  the  ground  of  personal  interest 
in  the  question,  the  speaker  required  the  debate  to  be  conducted 
in  the  ordinary  manner.^ 

400.  When  a  division  takes  place  in  a  committee  of  the  whole, 
the  members  are  directed  to  arrange  themselves  on  opposite  sides 
of  the  house,  and  are  numbered  by  the  tellers,  in  the  manner 
already  described,  as  in  use  previous  to  the  year  1836,  unless  five 
members  require  that  the  names  shall  be  noted  in  the  usual  manner, 
in  which  case,  the  members  are  counted  according  to  the  new 
method.3 

401.  In  the  house  of  lords,  the  question  is  stated,  and  the  mem- 
bers answer,  content^  or  not  content,  instead  of  aye  or  «o,  as  in  the 
commons.  If  the  lord  chancellor  is  unable  to  decide,  or  his  decision 
is  questioned,  a  di\'ision  takes  place.  This  is  effected  by  the  not-con- 
tents  remaining  within  the  bar,  and  the  contents  going  below  the 
bar,  instead  of  withdrawing  from  the  house.  One  teller  is  then 
appointed  for  each  party,  by  whom  they  are  respectively  counted. 

1  Comm.  Jour.  XXXVII.  901.  «  May,  277 

«  May,  240. 

14  • 


162  LEGISLATIVE   ASSEMBLIES.  [PaRT    II. 

When  all  the  lords  then  present  have  been  counted,  they  resume 
their  places  and  the  clerk  calls  over  the  names  of  those  lords  who 
hold  proxies,  who,  rising  uncovered  in  their  places,  declare  whether 
those  for  whom  they  are  proxies  are  content  or  not  content.  The 
lord  chancellor  or  speaker  if  a  peer  gives  his  voice  like  the  other 
lords,  on  being  required  by  the  tellers,  but  he  does  not  leave  his 
place  to  vote.  The  total  number  of  lords  present  and  of  the  prox- 
ies is  then  declared,  and  the  question  is  decided  by  the  joint  major- 
ity of  both  classes  of  votes.  In  case  of  an  equality  of  voices  and 
proxies  combined,  the  not  contents  have  it,  and  the  question  is  de- 
clared to  be  resolved  in  the  negative.  When  this  occurs,  it  is 
always  entered  in  the  journal,  "  Then  according  to  the  ancient 
rule  in  the  like  cases,  semper  presmnitur  pro  negante,  etc."  The 
effect  of  this  rule  is  different  when  the  house  is  sitting  judicially,  as 
the  question  is  then  put,  "  for  reversing  "  and  not  "  for  affirming ; " 
and,  consequently,  if  the  numbers  are  equal,  the  judgment  of  the 
court  below  is  affirmed.  The  privilege  of  voting  by  proxy  is  pecu- 
liar to  the  house  of  lords,  who  sit  in  their  own  right,  and  for  them- 
selves only ;  in  the  house  of  commons,  no  man  can  make  a  proxy, 
because  (as  it  is  said)  the  members  represent  others,  and  are  in 
effect  but  proxies  or  as  it  were  dq^uties  themselves.^  The  form  of 
taking  the  question  is  the  same  when  the  house  is  in  a  committee, 
except  that  proxies  are  not  allowed.^ 

402.  It  is  not  the  practice,  in  either  house  of  parliament,  to 
record  on  the  journals  the  names  of  the  members  voting  on  either 
side ;  nothing  more  appearing  there  than  the  numbers  on  the  divis- 
ion. In  the  house  of  commons,  since  the  introduction  of  the  new 
mode  of  dividing,  a  practice  has  prevailed,  by  which  the  votes  of 
the  members  are  made  known  and  preserved.  The  printed  hsts  of 
the  members,  made  use  of  on  the  division,  are  sent  to  the  printer, 
who  prints  the  marked  names  in  their  order ;  and  the  division  lists 
are  delivered  in  the  house  on  the  following  morning,  together  with 
the  printed  votes  and  proceedings.  In  the  house  of  lords,  the  names 
of  those  members,  who  dissent  from  any  vote  or  resolution  of  the 
majority,  may  be  entered  on  the  journals  together  with  their  rea- 
sons, in  the  form  of  what  is  called  a  protest. 

403.  In  the  legislative  assemblies  of  this  country,  besides  the 
method  by  general  consent,  there  are  two  modes  in  use,  for  taking  a 
question,  in  the  first  instance,  both  of  which  are  derived  to  us  from 
methods  practised  in  England.     The  first  is  that  by  the  voices 

»  Whitelocke,  L  390.  »  May,  279;  Appendix,  VIII. 


Chap.  III.]  formalities  of  proceedinq.  163 

already  described.  The  other  differs  from  it,  by  the  members  hold- 
ing up  the  right  hand,  instead  of  answering  aye  or  no.  When  this 
forni  is  used,  the  presiding  officer  puts  the  question  affirmatively, 
as  many  as  are  of  opinion  that,  etc.,  will  manifest  it,  by  holding-  up  the 
rig-ht  hand,  or  simply,  unit  manifest  it;  and  negatively,  as  many  as 
are  of  a  different  opinion  will  manifest  it,  or,  will  shovj  their  dissent, 
by  the  same  sign,  or,  in  the  same  manner;  and,  the  members  on  the 
different  sides,  respectively,  thereupon  hold  up  their  right  hands  as 
directed.  If  ihe  presiding  officer  is  unable  to  decide  by  the  sound 
of  the  voices,  if  the  question  is  taken  in  that  manner,  or  from  the 
show  of  hands,  or  his  decision  is  questioned,  a  division  takes  place. 
404.  The  most  common  form  of  dividing  is  that  prescribed  by  the 
rules  of  the  hoiise  of  representatives  in  congress,  namely ;  the  members 
simply  rise  in  their  seats  and  stand  uncovered,  first  those  in  the  af- 
firmative and  then  those  in  the  negative.  If  the  speaker  still  doubts, 
or  a  count  is  required,  the  speaker  names  two  members  one  from  each 
side,  to  count  the  members  in  the  affirmative  ;  which  being  reported 
he  then  names  two  others  one  from  each  side,  to  count  those  -in  the 
negative ;  these  being  also  reported,  the  speaker  then  rises  and  states 
the  decision  to  the  house.  In  telfing  the  house,  the  tellers  take 
their  stand  in  the  area  in  front  of  the  speaker's  chair,  and  first  those 
in  the  affirmative,  and  then  those  in  the  negative,  pass  betw^een 
them.  A  division  and  count  by  tellers  can  only  take  place,i  upon 
a  motion  seconded  by  at  least  one  fifth  of  a  quorum  of  the  mem- 
bers. In  the  house  of  representatives  of  Massachusetts,  when  a 
division  takes  place,  the  members  rise  in  their  seats,  first  on  one 
side  and  then  on  the  other,  and  are  counted  by  the  monitors  of  the 
house,  who  are  officers  appointed  at  the  commencement  of  each 
session,  two  (of  different  political  pai-ties)  for  each  division  of  the 
house,  and  sitting  with  the  divisions  to  which  they  belong.  The 
monitors  count  the  members  in  their  respective  divisions,  and  return 
the  numbers  to  the  speaker,  in  order,  commencing  with  the  first; 
the  members  of  each  division  remaining  standing,  until  the  vote  of 
that  division  is  declared,  when  they  resume  their  seats.  When  the 
numbers  are  returned  on  each  side,  the  speaker  adds  them  up,  and 
declares  the  result.  The  monitors  vote  and  are  counted  with  the 
other  members.  Other  methods  of  dividing  are  doubtless  in  use, 
varying  from  those  described,  according  to  the  circumstances  of 
different  assemblies ;  in  all,  however,  the  duties  of  the  members, 
and  the  authority  of  the  presiding  officer,  are  the  same  as  in  the 
house  of  commons. 

1  Rules  4. 


164  LEGISLATIVE   ASSEMBLIES.  [PaRT   II. 

405.    Another  mode  of  taking  a  question,  which  is  in  common 
use  in  this  country,  and  which  is  of  American  origin,  is  intended  to 
ascertain  the  names  as  well  as  the  numbers  of  those  who  vote  on 
each  side  ;  ^^^th  a  view  to  their  being  entered  in  the  journals,  or 
otherwise  preserved  in  an  authentic  form,  in  order  that  the  people 
may  laiow  how  their  representatives  vote  on  important  occasions. 
This  proceeding  is  denominated  taking  the  yeas  and  nays.     It  has 
not  been  introduced,  anywhere,  as  the  ordinary  mode  of  taking  a    • 
question,  but  as  a  substitute  for  that  mode,  when  so  resolved  by  the 
assembly,  or  otherwise  required  by  law.     As  it  is  the  mmority,  gen- 
erally, who  desire  to  have  the  votes  preserved  and  made  known  to 
the  people,  power  is  usually  conferred  upon  a  number  less  than  a 
majority,  either  by  the  constitution  or  by  a  rule  of  the  assembly,  to 
require  a  question  to  be  taken  by  yeas  and  nays.     When  a  ques- 
tion is  pending,  therefore,  or  is  about  to  be  taken,  if  any  member 
desires  it  to  be  taken  in  this  manner,  he  makes  a  motion  that  when 
the  question  shall  be  taken,  it  be  taken  by  yeas  and  nays,  and  if  the 
requisite  number  agree  with  him,  it  is  so  ordered.     The  question, 
then,  when  taken,  is  taken  in  that  manner,  in  the  first  instance ; 
without  being  previously  taken  by  the  voices  or  by  a  show  of 
hands,  as  is  the  case  on  a  division  in  the  ordinary  form. 

406.  When  or  how  this  practice  first  began  is  a  matter  of  un- 
certainty ;  but  it  appears  to  have  been  first  made  use  of  by  the 
congress  of  the  confederation.  That  body  voted  by  States,  and  the 
delegates  from  each  cast  the  vote  of  their  State.  Consequently,  it 
was  necessary,  in  order  to  know  whether  a  vote  was  correctly  de- 
clared, to  know  how  each  individual  delegate  voted,  on  a  given 
occasion.  This  method  was,  therefore,  invented  or  adopted  in 
that  assembly,  in  the  first  instance,  in  order  to  determine,  whether 
the  votes  were  correctly  declared.  This  appears  to  have  been  the 
only  purpose,  for  which  this  mode  of  taking  the  question  was 
originally  invented  and  adopted ;  inasmuch,  as,  in  a  body,  which, 
like  the  congress  of  the  confederation,  conducted  its  proceedings 
in  secret,  the  constituents  were  not  entitled  to  know  what  its  pro- 
ceedings were,  or  in  what  manner  their  representatives  voted, 
on  any  particular  occasion.  The  obvious  facihty  which  this  method 
furnishes  of  making  known  to  constituents  how  their  representatives 
vote,  where  the  proceedings  of  an  assembly  are  accessible,  has  made 
it  a  favorite  method  of  taking  a  question,  and  led  to  its  general 
use  in  our  legislative  assemblies.  It  is  usually  called,  as  it  is  in 
fact,  an  American  practice.     In  the  first  code  of  rules  promi\lgated 


Chap.  III.]  formalities  of  proceedixg.  165 

by  congress  in  July,  1777/  there  is  no  mention  whatever  of  this 
subject ;  but  in  the  month  of  August  following  a  specific  rule  was 
made,  by  which  it  was  resolved  by  congress,  "  that  if  any  member 
'chooses  to  have  the  ayes  and  noes  taken  upon  any  question,  he 
shall  move  for  the  same  previous  to  the  president's  taking  the  sense 
of  the  house  on  such  question,  and,  if  the  motion  be  seconded,  the 
individual  members  of  each  State  shall  be  called  upon  to  answer 
aye  or  no  to  the  question,  which  answer  shall  be  entered  on  the  jour- 
nal, and  the  question  be  determined  by  the  majority  of  States,  as 
the  majority  of  votes  in  each  shall  make  appear."  -  This  rule  was 
inserted  in  the  code  of  May,  1778,  and  again  in  that  of  May,  1781, 
and  continued  in  force  until  the  adoption  of  the  constitution  of  the 
United  States.  In  that  instrument,  this  mode  of  taking  a  question 
was  recognized  as  an  existing  practice,  and  provided  for,  in  both 
houses,  on  the  demand  of  one  fifth  of  the  members.  This  provision, 
or  its  equivalent,  has  been  generally  adopted  in  the  State  constitu- 
tions since  made. 

407.  In  order  to  take  a  question  in  this  manner,  it  is  stated  by  the 
presiding  ollicer  on  both  sides  at  once,  namely:  —  As  many,  as  are 
of  opinion  that,  etc.,  wiU,  when  their  names  are  called,  answer,  yes ; 
and  as  many  as  are  of  a  different  opinion  ivill,  when  their  names  are 
*:aUed,  answer,  no;  the  roll  of  the  assembly  is  then  called  over  by 
tiie  clerk,  and  each  member,  as  his  name  is  called,  rises  in  his  place, 
and  answers  yes  or  no  ;  and  the  clerk  first  responding  to  the  mem- 
ber, by  repeating  his  answer,  in  order  to  be  sure  that  he  apprehends 
it,  then  notes  it  on  the  roll.  When  the  names  have  all  been  called 
over,  first,  in  regular  coLuse,  and  then  those  who  did  not  answer 
when  their  names  w^ere  called,  together  wdth  the  names  of  those 
members,  whom  he  may  be  directed  by  the  presiding  officer  to  call, 
and  the  names  of  such  as  having  already  voted  wish  to  change 
their  votes,  and  noted  the  answers,  it  is  usual  for  the  clerk  to  read 
over  first  the  names  of  those  who  have  answered  in  the  affirmative, 
and  then  the  names  of  those  who  have  answered  in  the  negative,  in 
order  that,  if  he  has  made  any  mistake  in  noting  the  answer,  or  has 
omitted  to  note  the  answer  of  a  member,  the  mistake  may  be  cor- 
rected. The  clerk  then  gives  the  list  to  the  presiding  ollicer  who 
states  the  numbers  and  declares  the  result.'^ 

1  In    the    constitution    of   North  Carolina,  be  printed,  and  made  public,  immediately  af 

which  was  adopted  in  1776,  it  is  provided,  tcr  the  adjournment, 

that  upon  a  motion  made  and  seconded,  the  'J.  of  C.  III.  349. 

yeas  and  nays,  upon  any  question,  shall  be  *  Appendix,  IX. 
taken  and  entered  on  the  journals,  which  shall 


166  LEGISLATIVE   ASSEMBLIES.  [PA£T    II. 

408.  This  proceeding  has  been  deemed  so  important,  in  the 
United  States,  that,  in  several  of  the  constitutions,  it  is  provided, 
that  the  yeas  and  nays  of  the  members  of  either  branch  shall  be 
taken  and  entered  in  the  jom-nal,  at  the  request  of  a  certain  specified 
number  of  the  members  present.  In  the  constitutions  of  the  United 
States,  Maine,  Rhode  Island,  New  Jersey,  Virginia,  Michigan,  and 
Connecticut,  the  number  is  one  fifth ;  in  those  of  Maryland,  (as  to 
the  house  of  representatives,)  Missouri,  and  Arkansas,  five  mem- 
bers ;  in  those  of  Mississippi,  Texas,  and  California,  three  members ; 
in  those  of  Pennsylvania,  North  Carolina,  Georgia,  Kentucky,  Ten- 
nessee, Ohio,  Indiana,  Louisiana,  Illinois,  Alabama,  Florida,  and 
Iowa,  two  ;  and  in  those  of  New  Hampshu-e,  Vermont,  Delaware, 
and  Maryland,  (as  to  the  senate,)  one.  In  Michigan,  the  number 
required  is  one  fifth  of  the  members  elected ;  in  the  other  assem- 
blies, in  which  one  fifth  is  required,  it  is  one  fifth  only  of  those  pres- 
ent In  Wisconsin,  the  number  of  members  requisite  to  demand 
the  yeas  and  nays  is  one  sixth  of  those  present.  In  the  other 
States,  there  is  no  constitutional  provision  on  the  subject. 

409.  Besides  these  provisions,  according  to  which  a  certain  speci- 
lied  number  of  the  members  may  require  any  question  to  be  taken 
by  yeas  and  nays,  there  are  also  provisions,  which  require  certain 
specified  questions  to  be  taken  in  this  manner,  whether  requesteo* 
by  any  of  the  members  or  not.  In  the  constitutions  in  which  tht 
executive  is  invested  with  a  qualified  veto,  it  is  generally  provided, 
that  the  question,  on  passing  a  bUl  notudthstanding  the  objections 
of  the  executive,  shall  be  taken  by  yeas  and  nays,  and  that  the 
names  of  the  members  voting  on  either  side  shall  be  entered  in  the 
journals.  A  similar  provision  exists  in  most  of  the  constitutions, 
in  reference  to  amendments  of  the  constitution,  when  the  legisla- 
ture is  authorized  to  make  or  propose  amendments.  It  is  also 
required,  in  many  of  the  constitutions,  that  the  yeas  and  nays 
should  be  taken  on  other  special  occasions. 

410.  The  use  of  protests  or  dissents,  entered  in  the  journals, 
which  in  England  is  peculiar  to  the  house  of  lords,  prevails  here  in 
aU  our  legislative  assemblies,  and,  in  some  of  the  States,  is  expressly 
regulated  and  secured  by  constitutional  provisions.  By  the  consti- 
tutions of  New  Hampshire,  Vermont,  North  Carolina,  Florida, 
Tennessee,  Ohio,  Michigan,  Iowa,  and  Alabama,  any  one  member  of 
either  branch  may  dissent  from  and  protest  against  any  act  or  pro- 
ceeding, which  he  considers  injurious  to  the  public,  or  to  any  indi- 
vidual, and  have  his  reasons  therefor  entered  in  the  journal.  By  the 
constitution  of  Illinois,  the  same  right  is  secured  to  any  two  members. 


ClIAP.    III.J  FORMALITIES   OF   PROCEEDING.  167 

411.  Where  no  provision  is  made,  either  by  the  constitntion  or 
the  laws,  in  reference  to  taking  questions  by  yeas  and  nays,  or  as  to 
the  right  of  one  or  more  of  the  members  to  dissent  from  and  protest 
against  the  proceedings,  these  subjects  may  be  and  usually  are, 
(particularly  the  taking  of  questions  by  yeas  and  nays,)  regulated 
by  the  rules  and  orders  of  each  assembly.  Where  this  is  not  the 
case,  they  must  be  determined,  in  each  particular  case,  upon  a  mo- 
tion made  and  the  question  stated,  like  all  other  questions,  by  a  vote 
of  the  majority.  The  constitutional  provision  above  mentioned 
refers  only  to  members  of  the  same  assembly,  and  not  to  members 
of  a  coiirdinate  branch,  or  to  the  coJirdinate  branches  themselves,  or 
the  executive.  Protests,  coming  from  these  individuals  or  bodies, 
therefore,  as  well  as  those  of  strangers,  must  be  determined  by  a 
vote  in  each  particular  case. 


Section  VI.  —  Of   the   Principle   or  Rule  of  Decision  in  a 

Legislative   Assembly. 

412.  The  rule  of  decision,  in  all  councils  and  deliberative  assem- 
blies, whose  members  are  equal  in  point  of  right,  is,  that  the  will 
of  the  greater  number  of  those  present  and  voting,  —  the  assembly 
being  duly  constituted,  —  is  the  will  of  the  whole  body.  Hence 
whatever  is  regularly  agreed  upon  by  a  majority  of  the  members 
of  a  legislative  assembly  is  a  thing  "  done  and  past "  by  that  body. 
Where  the  assembly  is  equally  divided,  there  is,  of  course,  not  a 
majority  in  favor  of  the  proposition,  which  is  put  to  vote,  and  that 
proposition  is  consequently  decided  in  the  negative. 

413.  The  right  of  the  majority  thus  to  decide,  which  is  instinc- 
tively admitted  as  an  ultimate  fact,  is  also  founded  in  good  reason. 
In  the  first  place,  as  has  already  been  remarked  with  reference  to 
electors,  the  members  being  supposed  equal,  it  is  at  least  probabU, 
if  not  certain,  that  there  will  be  more  knowledge,  wisdom,  and  vir- 
tue in  a  majority  than  in  any  smaller  nmnber ;  secondly,  there  is  no 
other  practicable  way,  by  which,  in  the  last  resort,  any  matter  can 
be  concluded,  in  reference  to  which  there  is  a  diversity  of  opinion ;  ^ 
thkdly,  the  supremacy  of  the  majority  is  not  the  dominion  of  a  cer- 
tain number  of  the  individual  members  arrayed  together  for  the 
purpose  of  governing  the  others  on  all  questions  and  subjects ;  but 

^  "  If  tlie  consent  of  tho  majority  shall  not  consent  of  every  indlvulnal  can  make  any 
in  reason  be  received  as  the  act  of  the  whole,  thing  to  be  the  act  of  the  whole."  —  Locke  on 
and  include  every  individual,  nothing  but  the     Civil  Government. 


I 

168  LEGISLATIVE   ASSEMBLIES.  [PaRT   IL 

those  who  constitute  the  majority  or  minority  on  any  one  point 
may  change  places  on  the  next  question  that  arises;  and,  fourthly, 
as  a  council  or  other  organized  assembly,  consisting  of  several 
members,  is  considered  as  one  person  or  body,  as  to  all  other  per- 
sons and  bodies,  its  will  can  be  no  other  than  that  which  predomi- 
nates in  it,  where  there  are  several  discordant  wills  among  the 
members. 

414.  For  these  reasons,  the  law  of  the  majority  is  universally 
admitted  in  all  legislative  assemblies ;  ^  unless,  in  reference  to  par- 
ticular cases;  persons  or  circumstances,  a  different  rule  is  prescribed, 
by  some  paramount  authority,  or  is  agreed  upon  beforehand  and 
established  by  the  assembly  itself,  by  which  a  smaller  number  is  per- 
mitted, or  a  larger  number  is  requh-ed,  to  do  some  particular  act. 
But  even  in  these  cases,  it  is  the  will  of  the  majority  that  governs; 
because  it  is  by  a  major  vote,  in  the  first  instance,  that  the  rule 
itself  is  established ;  or,  where  the  rule  is  estabUshed  by  the  consti- 
tution, or  by  law,  it  derives  its  authority  from  the  sovereign  power 
of  the  people  acting  in  a  constitutional  manner,  which  ultimately 
resolves  itself  into  the  will  of  the  majority.  The  constitution  of 
the  United  States,  requires  the  agreement  of  two  thirds  of  each 
branch  to  pass  a  bill,  notwithstanding  the  objections  of  the  presi- 
dent, and  also  allows  one  fifth  of  the  number  necessary  to  a  quorum 
to  require  a  question  to  be  taken  by  yeas  and  nays.  There  are 
examples  of  the  establishment  by  express  provision  of  a  rule  of 
decision,  different  from  the  majority. 


Section  VII.  —  Of  the  .Journal  or  Record  of  the  Proceedings. 

415.  The  official  record  of  what  is  "  done  and  past,"  in  a  legis- 
lative assembly,  is  called  the  Journal.  It  is  so  called,  because  the 
proceedings  are  entered  therein,  in  chronological  order,  as  they  occur 
from  day  to  day ;  the  business  of  each  day  forming  the  matter  of 
a  complete  record  by  itself;  hence  the  record  is  firequently  spoken 
of  in  the  plural  as  the  journals. 

1  In  the   monthly,   quarterly,  and   yearly  sense  of  the  aggregate  body,  having  regard  to 

meetings  of  the  Quakers,  as  well  as  those  of  age,  character,  judgment,  piety,  and  numbers, 

committees  and  select  bodies  from  them,  the  combined,  to  be  gathered  and  asceitained  by 

mode  of  acting  and  deciding  is,  "  not  by  a  nu-  the  clerk,  who  is  uniformly  the  presiding  of- 

merical  or  any  other  fixed  majority  of  votes,  ficer."  — By   Shaw,   C.  J.,    Earle  v.    Wood^ 

given  by  those  authorized  and  qualified  to  give  Cushing's   Reports,  VIII  454 
a  voice  upon  any  question ;  but  upon  the  solid 


Chap.  III.]  formalities  of  proceeding.  169 

416.  In  the  two  houses  of  parliament,  the  clerks  take  minutes  of 
all  the  proceedings,  orders,  and  judgments,  of  their  respective 
houses,  as  they  occur,  and  make  short  entries  of  them  in  their  min- 
ut*'-hook3.  These  minutes  are  printed  and  distributed  among  the 
members  daily,  under  the  title  of  "Minutes  of  the  Proceedings" 
in  the  lords,  and  of  "  Votes  and  Proceedings,"  in  the  commons;  the 
latter  "  being  first  perused  by  the  speaker,"  and  corrected  if  neces- 
sary. From  these,  and  from  the  papers  on  file,  it  is  the  duty  of  the 
clerks  aftenvards  to  prepare  the  journals,  in  which  the  entries  are 
made  at  greater  length  and  with  the  forms  more  distinctly  pointed 
out.  The  journal  of  the  commons  is  printed,  from  time  to  time, 
during  the  session ;  that  of  the  lords  notuntil  after  its  termination. 
All  persons  may  have  access  to  the  journals  of  the  two  houses,  in 
the  same  manner  as  to  the  records  of  the  courts.^ 

417.  In  this  country,  the  clerks  make  similar  minutes  and  entries 
of  the  daily  proceedings,  which  either  constitute  the  journal,  or  are 
used  in  making  it  up  at  the  end  of  the  session.  The  journal,  as  it 
is  thus  made  up,  is  published  in  some  of  the  States  from  day  to 
day ;  in  others,  not  untU  the  close  of  the  session ;  in  others  again, 
it  is  not  pulilished  at  all. 

418.  The  journal  is  to  be  kept  or  made  up,  in  the  first  instance, 
by  the  clerk  alone,  who  is  the  sworn  recording  officer  of  the  assem- 
bly, subject  only  to  the  control  of  the  assembly  itself,  and  not  to  the 
control  of  the  presiding  officer,-  or  of  any  other  member ;  though 
in  cases  of  difficulty  and  importance,  the  form  of  entry  has  been 
settled  by  a  committee  appointed  for  the  purpose.^  So,  too,  the 
assembly  itself  may  direct  a  particular  proceeding  to  be  entered,^  or 
not  to  be  entered,-^  on  the  journals,  or  to  be  entered  thereon  in  a 
particular  manner,*^  or  with  explanatory  remarks  stating  the  grounds 
of  it."  In  general,  it  is  the  custom,  in  the  legislative  asscmbfies  of 
the  United  States,  to  make  the  entries  in  the  jomrnals  in  a  more 
concise  and  summary  form.  It  appears  to  be  a  general  rule,  in  the 
keeping  of  the  journal  of  a  legislative  assembly,  that  nothing  shall 
be  spread  upon  it  at  length,  by  the  way  of  correction,  or  otherwise, 
which  the  assembly  has  previously  refused  to  admit.^ 

419.  The  practice  is  very  general,  with  us,  though  the  secretar}' 

1  Grey,  II.  340.  •  Hatsell,  U.  354,  n.;  Huns.  (1)  XXX\in. 

«  Hatsell,  II.  339,  n.  194. 

8  Hati5ell,  II.  216,  n.  '  Pai'l.  Reg.  LVII.  593;    Hans.  (3)  XLI5 

«  J.  of  C.  VII.  60;  J.  of  H.  29th  Cong.  1st  331. 
Sess.  1047;  Comm.  Jour.  LV.,  783,  785.  »  Cong.  Globe,  XV.  10C4,  1065. 

»  Pari.  Hcg.  XL VIII.  59 ;  Cav.  Deb.  I.  66. 

15 


170  LEGISLATIVE    ASSEMBLIES.  [PaRT   IL 

or  clerk  is  an  independent  officer,  and,  in  the  first  instance,  makes 
up  his  record  of  the  proceedings  of  the  assembly,  without  any  dic- 
tation, for  the  clerk  to  read  over,  at  the  commencement  of  each 
daily  sitting,  the  journal  of  the  preceding  sitting.  The  journal  is 
to  be  corrected,  either  at  the  suggestion  of  a  member,  or  upon  mo- 
tion, when  the  reading  is  completed.  It  is  then  considered  as 
approved  by  thfe  assembly ;  to  which  no  formal  vote  or  proceeding 
is  necessary ;  if  the  correction  suggested  or  moved  is  made,  or  none 
is  suggested,  the  approval  of  the  assembly  follows  of  course.  This 
proceeding  cannot  take  place  without  the  presence  of  a  quorum. 
The  practice  of  reading  and  revising  the  journal,  in  the  manner 
above  stated,  is  generally  provided  and  regulated  by  each  assembly 
for  itself  by  a  special  rule.  But  even  if  this  is  not  the  case,  the 
practice  is  so  general,  that  it  must  be  regarded  as  incidental  to  the 
duty  of  keeping  a  journal.  Though  the  correction  of  the  journal 
commonly  occurs  immediately  after  the  reading,  it  may  be  made  at 
any  time  afterwards,  when  a  mistake  is  discovered.^ 

420.  If,  in  consequence  of  such  correction,  the  apparent  deter- 
mination of  the  assembly  is  changed,  the  alteration  takes  place  nev- 
ertheless, accordingly,  and  all  the  subsequent  proceedings  must 
conform  to  it,  in  the  same  manner  as  if  it  had  been  originally  so 
recorded.  Thus  if  a  bill  is  recorded  as  having  passed  one  of  its 
stages,  and,  by  a  subsequent  correction  of  the  vote,  it  is  ascertained 
that  the  bill  did  not  pass,  as  supposed,  the  determination  of  the 
house  is  altered  accordingly,  and  aU  subsequent  proceedings  are 
null  and  void.^ 

421.  In  the  senate  of  the  United  States,  it  is  provided  by  the 
first  rule  of  that  body,  that  the  president  having  taken  the  chair, 
and  a  quorum  being  present,  "  the  journal  of  the  preceding  day 
shaU  be  read  to  the  end  that  any  mistake  may  be  corrected  that 
shall  be  made  in  the  entries."  In  the  house  of  representatives  of 
the  United  States,  it  is  made  the  duty  of  the  speaker,  by  the  sixth 
rule,  "  to  examine  and  correct  the  journal  before  it  is  read,"  and,  by 
the  first,  on  the  appearance  of  a  quorum,  to  "  cause  the  journal  of 
the  preceding  day  to  be  read."  Under  these  rules,  the  practice  is 
substantially  as  above  stated,  except,  that  the  speaker,  in  the  house 
of  representatives,  revises  the  journal  and  corrects  it  before  it  is  read, 
and  if  any  mistakes  occur,  or  are  pointed  out,  on  the  reading,  he 
directs  the  proper  correction  to  be  made,  in  pursuance  of  his  general 
authority  to  revise  the  journal.     If  a  correction  takes  place  by  the 

1  Cong.  Globe,  VIII.  93.  "  J.  of  H.  31st  Cong.  1st  Sess.  1436. 


Chap.  III.]  formalities  of  proceeding.  171 

authority  of  the  speaker,  or  otherwise,  on  the  reading,  the  journal 
itself  ought  to  be  altered  accordingly ;  if,  by  a  vote  of  the  assembly, 
after  the  reading,  the  proceedings  should  be  recorded  at  length,  and 
thus  show  the  alteration;  particularly  as  the  correction  may  be 
made  after  a  considerable  interval,  and  the  journal  may,  in  the  mean 
time,  have  been  printed.. 

422.  A  record  or  minute  of  the  proceedings  of  a  deliberative 
assembly  of  any  kind  is  so  essential  to  the  convenient  and  efficient 
exercise  of  its  functions,  that  it  must  be  considered  as  a  necessary 
incident  to  the  existence  of  every  such  body.  But  the  importance 
of  having  and  preserving  such  a  record  of  the  votes  and  acts  of  a 
legislative  body,  in  a  form  accessible  to  the  public,  has  been  con- 
sidered so  great  in  this  country,  as  to  be  required  by  express  consti- 
tutional provisions.  This  requisition,  though  imperative  as  to 
keeping  a  daily  record  of  the  proceedings,  leaves  the  form  and 
manner  of  keeping  it  wholly  to  the  assemblies  themselves,  who 
may,  notwithstanding,  direct  what  entries  shall  be  made  therein.^ 

423.  The  constitutions  of  the  United  States,  and  of  all  the 
States,  except  Massachusetts,  and  South  Carolina,  require  each 
branch  of  the  legislature  to  keep  and  publish  a  journal  of  its  pro- 
ceedings. In  several  of  the  States,  the  requisition  to  publish  is 
general,  without  limitation  or  condition  ;  but,  in  Vermont,  a  vote 
of  one  third,  and  in  Connecticut,  of  one  fifth,  of  the  members,  is 
necessary ;  by  the  constitutions  of  the  United  States,  Virginia, 
Missouri,  Arkansas,  and  Maine,  the  publication  is  to  be  made  from 
time  to  time ;  by  those  of  New  Hampshire,  Delaware,  Alabama, 
North  Carolina,  Florida,  Vermont,  and  Georgia,  it  is  to  be  made 
immediately,  or  as  soon  as  convenient,  after  every  session ;  by  those 
of  Pennsylvania,  Kentucky,  and  Louisiana,  the  journals  are 
required  to  be  published  weekly ;  and  by  the  constitutions  of  the 
United  States,  Maine,  Connecticut,  New  York,  Pennsylvania,  Del- 
aware, Tennessee,  Alabama,  Michigan,  Ai'kansas,  Wisconsin,  and 
Missouri,  those  parts  are  to  be  omitted,  wliich  the  public  welfare 
requires  should  be  kept  secret.  The  phrase  "  to  keep  a  journal," 
seems  borrowed  from  the  technical  language,  as  the  keeping  of  a 
journal  corresponds  to  the  practice,  of  mercantile  bookkeeping. 
The  term  evidently  means  to  make  a  permanent  record  of  the  daily 
ti'ansactions.^ 

424.  It  is  in  general  competent  to  a  legislative  body  to  rescind 

>  J.  of  H.  29th  Cong.  1st  Sess.  1047.  given  of  the  word  "  keep,"  in  Johnson's  Dio- 

•  It  is  remurkable,   that,   out  of  the  great      tionnry,  there  is  not   one  which  denotes  the 
aumber,  thirty  mne,  significations,  which  are      sense  here  ascribed  to  it. 


172  LEGISLATIVE   ASSEMBLIES.  [PaRT   II, 

any  of  its  orders,  resolutions,  or  other  proceedings,  either  of  the 
same  or  of  a  former  session.  When  this  is  done,  the  operation  or 
effect  of  the  matter  rescinded  is  entirely  annulled;  though  the  entry 
itself  stni  remains  upon  the  journal.  It  sometimes  happens,  how- 
ever, that  it  is  not  only  desired  to  rescind  or  annul  the  effect  of  a 
former  proceeding,  but  to  treat  it  with  strong  disapprobation  or 
contempt ;  in  which  case,  the  obnoxious  entry  itself  is  expunged, 
that  is,  erased  or  obliterated  from  the  journal.  This  proceeding  is 
of  extremely  rare  occurrence.  In  1772,  the  house  of  commons 
passed  a  vote  of  thanks  to  Dr.  NoweU,  for  his  sermon  preached 
before  the  house,  at  their  request,  and  very  soon  after,  in  the 
same  session,  ordered  the  entry  of  this  vote  to  be  expunged. 
In  1782,  the  house  of  commons  ordered  all  the  entries  relative 
to  ]VIr.  "Wilkes,  in  the  journals  of  the  year  1769,  to  be  expunged. 
In  these  cases,  it  appears,  that  the  entries  ordered  to  be 
expunged  were  literally  erased  from  the  original  journal,  though 
they  both  appear  in  the  printed  copies  ;  the  former  in  a  memo- 
randum by  the  clerk,  in  the  place  where  the  order  was  originally 
entered,  stating  the  order,  and  that  it  had  been  expunged  from 
the  votes  by  the  order  of  the  house,  and  the  latter  precisely  as 
they  were  originally  made.  In  the  house  of  lords,  the  protests, 
or  parts  of  them,  entered  by  the  members  have  frequently  been 
ordered  to  be  expunged;  an  order  which  is  usually  followed  by 
a  protest.  In  our  legislative  assemblies,  this  proceeding  has 
occasionally  taken  place ;  in  most  instances  the  expunging  being 
effected  by  an  actual  obliteration  of  the  obnoxious  passages ; 
on  one  memorable  occasion,  by  drawing  black  lines  around  and 
writing  the  word  expunged  across  the  offending  matter.  The  right  to 
expunge  whatever  it  pleases  from  the  journal  of  its  proceedings  is 
one  which  can  only  be  Umited,  like  the  right  of  expulsion,  by  the 
absolute  discretion  of  the  assembly ;  and  is  not  restrained  by  the 
constitutional  right  of  a  member,  to  enter  a  protest  thereon,  or  by 
the  constitutional  injunction  to  keep  and  publish  a  journal.^ 

425.  It  remains  only  to  consider  the  character  of  the  journals, 
and  the  competency  and  effect  of  entries  in  them,  as  evidence 
in  a  court  of  justice.  The  house  of  lords,  •  having  a  power  of 
judicature,  in  matters  of  law  and  equity,  in  the  last  resort,  is  a 
court  of  record,  and  its  journals  are  consequently  considered  as 
public  records.  The  house  of  commons  having  no  such  power 
of  judicature,  its  journals   are   not  usually  described  as  records, 

1  J.  of  H.  29th  Cong.  1st  Sess.  1047;  Cong.  Globe,  XX.  13. 


Chap.  III.]  formalities  of  proceeding.  173 

But,  in  truth,  both  houses  have  power  of  judicature  and  are 
consequently  courts  of  record,  in  certain  matters.  In  the  lan- 
guage of  Sir  Edward  Coke,'  "  the  lords  in  their  house  have  power  of 
judicature,  and  the  commons  in  their  house  have  power  of  judi- 
cature, and  both  houses  together  have  power  of  judicature." 
The  commons  exercise  judicial  functions,  in  adjudicating  upon 
controverted  elections  and  returns ;  and  both  branches  exer- 
cise judicial  functions,  in  inflicting  punishments  for  breaches  of 
privilege  and  contempts.  The  two  branches,  acting  concurrently, 
exercise  a  power  of  judicature  in  bills  of  a  judicial  character,  such 
as  bills  of  attainder,  pains  and  penalties,  pardon  and  divorce.  In 
performing  their  legislative  and  judicial  functions,  the  two  houses 
do  not  proceed  in  separate  and  distinct  capacities ;  but  are  con- 
stantly exercising  both  functions  at  the  same  sitting,  and  in  refer- 
ence perhaps  to  the  same  subjects ;  and  their  proceedings  upon 
both  are  entered  by  their  sworn  officers  in  a  similar  form,  and  in 
the  same  page  of  one  book. 

426.  Wherever,  therefore,  the  journals  of  either  house  have  the 
character  of  records,  they  are  admissible  as  such,  and  prove  the 
fact  adjudicated,  in  the  same  manner  and  to  the  same  extent  with 
the  records  of  the  judicial  courts  ;  where  they  do  not  possess  that 
character,  they  are  evidence  only  of  the  proceedings  which  they 
purport  to  record,  but  not  of  the  facts  affirmed  or  implied  in  those 
proceedings.^  Thus  a  copy  of  the  minutes  of  the  reversal  of  a 
judgment  in  the  house  of  lords,  as  entered  in  the  journals,  is  evi- 
dence of  the  reversal,  fike  the  record  of  a  judgment  in  any  other 
court ;  so  the  proceedings  of  the  house  of  commons,  upon  a  contro- 
verted election  or  return,  as  recorded  in  the  journals,  are  evidence 
of  the  right  of  membership ;  and,  in  like  manner,  a  resolution  of 
either  house,  as  entered  in  the  journals,  that  a  party  had  been 
guilty  of  a  breach  of  privilege,  or  of  a  contempt,  would  be  con- 
clusive evidence  of  the  fact,  that  the  party  had  been  adjudged  by 
the  house  to  be  guilty  of  such  offence.  In  other  cases,  in  which 
the  houses  are  not  in  the  exercise  of  judicial  functions,  their  journals 
are  admissible  as  evidence  of  the  proceedings,  but  not  of  the  facts 
alleged  or  implied  in  those  proceedings.  Thus,  upon  the  indict- 
ment of  Titus  Oates  for  perjury,  a  resolution  of  the  house  of  com- 
mons, alleging  the  existence    of  a  popish  plot,   was  rejected   as 

1  Fourth  Inst.  23.  dence,   I.  386 ;    Eex  v.  Lord  George  Gordon, 

'  Witli  respect  to  the  character  of  the  jour-  Douglass's  (K.  B.)  Reports,  II.  693;  Jones  v. 

nals  as  records,  see  Fourth  Inst.  23 ;  Comm.  Jiandall,    Cowpcr's    Reports,   17 ;    Hawkins'i 

Jour.  I.  617,  673,  676,  683;  PhiUipps  on  Evi-  State  Trials,  683;  Mav,  200. 

15  • 


174  LEGISLATIVE   ASSEMBLIES.  [PaRT  II. 

evidence  of  that  fact ;  although  it  was  clearly  admissible  to  prove 
that  the  house  of  commons  had  so  resolved.  The  journals  of  the 
t^'o  houses,  therefore,  as  evidence,  stand  upon  the  same  grounds  ; 
although  those  of  the  lords  possess  the  character  of  records,  to  a 
greater  extent ;  they  are  both  good  evidence  of  proceedings  in  par- 
liament, but  are  not  conclusive  of  facts,  alleged  by  either  house, 
unless  those  facts  are  within  their  immediate  jurisdiction.  Thus,  a 
resolution  might  be  agreed  to  by  either  house,  that  certain  parties 
had  been  guilty  of  bribery ;  but  in  a  prosecution  for  that  offence, 
such  a  resolution  would  not  be  admitted  as  proof  of  the  fact, 
although  founded  in  evidence  taken  upon  oath.  In  this,  country, 
the  same  principles  are  evidently  applicable,  in  the  absence  of  any 
special  provision,  to  the  proceedings  of  our  legislative  assemblies. 

427.  The  contents  of  the  journals,  according  to  the  practice  in 
England,  may  be  proved  in  two  modes  ;  first,  by  the  production  of 
a  copy  of  such  portions  as  may  be  wanted,  authenticated  either  by 
the  certificate  and  signature  of  the  clerk,  or  by  the  oath  of  the  party 
himself  or  some  other  person,  that  it  is  a  true  copy  from  the  original 
in  the  journal  office ;  and,  second,  by  the  attendance  of  the  clerk  or 
other  proper  oflicer  in  court,  either  with  the  printed  journal,  or  with 
extracts  which  he  certifies  to  be  true  copies,  or  if  necessary,  with 
the  original  manuscript  journal ;  but,  where  the  clerk  attends,  the 
previous  consent  of  the  house,  or  of  the  speaker,  if  the  house  is  not 
sitting,  must  first  be  obtained.  These  different  modes  of  proof 
seem  to  indicate  that  the  character  of  the  journals,  as  instruments 
of  evidence,  is  either  uncertain,  or  that  it  is  differently  regarded  in 
different  courts. 

428.  In  this  country,  the  contents  of  the  journals,  where  they 
are  not  printed  and  published  by  public  authority,  or  until  they  are 
so  pubfished,  are  probably  proved  by  copies  of  extracts  authenti- 
cated by  the  certificate  and  signature  of  the  clerk,  in  the  manner 
in  which  the  proceedings  of  public  bodies  are  usually  proved.  In 
some  of  the  States,  as  in  Massachusetts,  the  mode  of  proof  is  regu- 
lated by  law.  Where  the  journals  are  printed  merely  by  the  order 
of  the  assembly  itself,  it  is  held  that  printed  copies  are  not  evidence, 
unless  compared  and  certified.  Where  they  are  required  by  law  to 
be  printed,  and  are  printed  accordingly  by  the  authorized  printer, — 
as  in  certain  States  which  have  been  mentioned, — it  would  seem, 
that  they  ought  to  be  placed,  as  evidence,  upon  the  same  footing 
with  the  printed  statutes. 

429.  Where  the  practice  prevails  of  taking  minutes  of  the  "  votes 
and  proceedings"  in  the   first   instance,  and   of  making  up  the 


Chap.  III.]  formalities  of  proceeding.  175 

journal  therefrom  afterwards,  the  former  must  be  considered  aa 
bearing  the  same  analogy  to  the  latter,  that  the  docket  of  the  clerk 
of  a  judicial  court  bears  to  the  complete  record.  The  votes  and 
proceedings  are  usually  printed  from  day  to  day,  for  the  use  and 
convenience  of  the  members;  but,  when  the  journal  comes  to  be 
made  up,  if  there  is  any  discrepancy  between  the  two,  the  journals 
are  held  to  be  correct.^ 


Section  VIII.     Of  the   Printing  by   Order  of  a  Legislative 

Assembly. 

430.  The  art  of  printing  furnishes  so  obvious  a  mode  of  facili- 
tating the  proceedings  of  a  legislative  assembly,  that,  at  the  present 
day,  it  has  almost  entirely  or  to  a  considerable  extent  superseded 
the  reading  at  length  of  papers  and  documents  of  every  description 
in  aU  assemblies  in  which  much  business  is  transacted.  It  has  also, 
for  the  most  part,  taken  the  place  of  all  other  modes  of  making  their 
acts  and  doings  known  to  the  public. 

431.  The  practice  of  printing  the  votes  and  proceedings  of  the 
house  of  commons,  which  commenced  about  the  year  1680,  became 
firmly  established,  though  not  without  some  struggle,  in  the  begin- 
ning of  the  eighteenth  century,  and  has  continued  every  session 
since  that  time.  The  practice  of  printing  bills  and  other  documents 
which  began  at  a  later  period  is  now  also  general.  The  immense 
accession  to  the  business  of  parliament,  resulting  from  the  ex- 
traordinary activity,  physical  and  mental,  which  distinguishes  the 
present  day,  could  not  have  been  properly  transacted,  according  to 
the  established  methods  of  proceeding,  without  the  aid  of  the  press. 
The  business  of  receiving  and  proceeding  upon  petitions  will  alone 
illustrate  the  truth  of  this  statement.  In  the  five  years  preceding 
and  including  the  year  1843,  the  number  of  public  petitions  pre- 
sented in  the  house  of  commons  was  94,292 ;  every  one  of  which, 
according  to  the  ancient  method,  would  require  to  be  read  and  pro- 
ceeded upon,  and  might  be  debated,  by  itself;  and  to  do  this  would 
have  required  more  than  the  whole  time  of  the  house.  The  diffi- 
culty has  been  obviated  by  the  appointment  of  a  standing  commit- 
tee on  public  petitions,  by  whom  they  are  classified,  analyzed,  and, 
when  necessary,  directed  to  be  printed  at  length.  Besides  petitions, 
there  are  three  other  classes  of  papers  or  documents,  which  are  now 
generally  printed,  namely,  the  accounts,  returns,  and  other  papers 

1  Perrj'  &  Knapp,  536 ;   Pi^rl.  Deb.  V.  20. 


176  LEGISLATIVE   ASSEMBLIES.  [PaRT  IL 

presented  from  the  public  officers,  by  order  of  the  house ;  bills 
public  and  private;  and  reports  of  committees.  In  regard  to  the 
first,  there  is  a  select  committee  appointed  at  the  commencement 
of  each  session,  to  assist  the  speaker  in  all  matters  which  relate  to 
the  printing  executed  by  order  of  the  house,  and  for  the  purpose  of 
selecting  and  arranging  for  printing  returns  and  papers.  The  busi- 
ness of  this  committee  is  to  examine  all  papers,  and  determine 
whether  they  shall  be  printed  at  length,  or  in  the  form  of  an  ab- 
stract. Public  bills  are  generally  ordered  to  be  printed,  and  not 
unfrequently  more  than  once.  Private  bills  are  required  to  be  pre- 
sented in  a  printed  form.  Reports  of  committees  are  made  acces- 
sible to  the  members  and  to  the  public  in  the  same  manner.  In 
both  houses  of  congi-ess,  and  in  the  legislatures  of  the  States, 
generally,  it  has  become  equally  necessary  to  provide  for  the  print- 
ing of  every  paper  or  document,  which  may  become  the  subject  of 
legislative  consideration. 

432.  In  England,  all  papers  printed  by  the  order  of  either  house, 
are  distributed  to  the  members  of  both ;  those  of  past  sessions  are 
preserved ;  and  all  those  which  are  ordered  to  be  printed  generally 
are  accessible  to  the  public  in  the  several  offices  for  the  sale  of  par- 
liamentary papers,  established  under  the  management  of  the  print- 
ers of  the  house,  and  the  control  of  the  speaker.  Parliamentary 
papers  are  sold  at  the  low  rate  of  a  half  penny  a  sheet,  which  is 
supposed  to  be  moderate  enough  to  secure  the  distribution  of  them 
to  all  persons  who  may  be  interested  in  their  contents.  They 
may  also  be  sent  through  the  post-office  at  a  lower  than  the  ordi- 
nary rate,  and  by  members  during  the  session  free  of  postage.  In 
our  legislative  assemblies,  measures  are  usually  taken  for  the  effec- 
tual distribution  of  all  public  documents,  by  orders  for  the  purpose. 
In  congress,  they  are  distributed  by  members,  through  the  post- 
office,  under  the  privilege  of  franking.  But  no  regular  provision  is 
made  for  their  sale. 

433.  It  remains  to  be  considered  how  far  the  order  of  a  legisla- 
tive assembly  will  justify  or  excuse  the  printing  and  publishing  of 
that  which  would  othermse  be  libellous.  In  reference  to  this  ques- 
tion, the  house  of  commons  and  the  court  of  king's  bench  are 
apparently  at  variance  with  each  other ;  the  former  having  resolved, 
"  that  the  power  of  publishing  such  of  its  reports,  votes,  and  pro- 
ceedings, as  it  shall  deem  necessary  or  conducive  to  the  public 
interests,  is  an  essential  incident  to  the  constitutional  functions  of 
parliament ;  "  and  the  latter  having  decided,  "  that  the  fact  of  the 
house  of  commons  having  directed  their  printers  to  publish  all  their 


Chap.  III.]  formalities  of  proceeding.  177 

parliamentary  reports  is  no  justification  for  them,  or  for  any  book- 
seller who  publishes  a  parliamentary  report  containing  a  libel 
against  any  man."  If  the  privilege  of  freedom  of  debate  may  be 
considered,  by  analogy,  as  furnishing  the  true  rule  on  this  subject; 
and  this  seems  the  most  reasonable  and  proper  ground  to  place 
the  matter  upon ;  the  claim  of  the  commons  may  be  admitted  in 
its  fullest  extent,  and  the  doctrine  of  the  court  sustained  at  the 
same  time,  by  limiting  the  publication  to  the  members  of  the 
house,  and  this  appears  to  be,  in  fact,  the  decision  of  the  court  of 
king's  bench  in  the  case  referred  to  of  Stockdale  v.  HansarcU  In 
England,  the  question  is  now  of  little  practical  importance,  in  con- 
sequence of  the  passing  of  a  statute,  by  which  it  is  provided,  that 
aU  proceedings,  criminal  as  well  as  civU,  against  persons  for  publi- 
cation of  papers  printed  by  order  of  either  house  of  parliament,  are 
to  be  stayed  by  the  coiuts,  upon  delivery  of  a  certificate  and  affida- 
vit, that  such  publication  is  by  order  of  either  house  of  parliament.^ 

Section  IX.  —  Of  the  Attendance  and  Pat  of  the  Members. 

434.  Every  member  of  a  legislative  assembly  is  under  a  consti- 
tutional obligation  to  attend  the  service  of  the  house  to  which  he 
belongs,  both  in  the  first  instance,  for  the  purpose  of  being  qualified 
and  assuming  the  functions  of  a  member,  and,  afterwards,  for  the 
purpose  of  participating  in  the  daily  business.  In  the  commons, 
house  of  parliament,  and  in  all  the  legislative  bodies  of  the  United 
States,  the  attendance  must  be  in  person  ;  in  the  house  of  lords, 
after  a  member  has  appeared  in  person,  and  has  been  qualified,  he 
may  afterwards  give  his  attendance  and  vote  by  proxy.    K  a  mem- 

*  Adolphus  and  Ellis's  Reports,  XI.  253.  tification.    This   transaction  occurred  in  the 

*  For  an  account  of  this  controversy,  see  18th  of  Charles  the  Second,  at  which  time  the 
May,  156.  In  the  case  of  Lake  v.  King,  grand  committees  on  grievances,  religion, 
(Saunders's  Reports,  I.  131,)  which  was  an  trade,  and  courts  of  justice,  which  had  been 
action  of  the  case  for  printing  and  publishing  a  great  political  engine  in  the  preceding  reign, 
a  libel,  the  defendant  pleaded,  that  the  sup-  were  still  in  use,  and  were  authorized  to 
posed  libel  was  contained  in  a  petition  which  receive  and  investigate  the  complaints  rela- 
he  caused  to  be  presented  and  delivered  to  tive  to  those  subjects  respectively,  without 
the  committee  of  grievances  of  the  house  of  their  being  first  referred  by  the  house.  But  at 
commons,  which  committee  had  full  power  the  present  day  grand  committees  are  abol- 
and  authority  to  hear  and  examine  such  ished  in  parliament,  and  no  committee,  either 
grievances,  by  whom  the  same  was  taken  of  that  body,  or  of  any  of  our  legislative 
cognizance  of;  and  that  he  afterwards  caused  assemblies,  has  any  authority,  in  the  first 
the  petition  to  be  printed  and  distributed  to  instance,  to  receive  a  petition.  It  may  be 
the  members  of  that  committee,  which  was  doubted,  therefore,  whether  the  case  oi  Lakt 
the  publication  complained  of.  The  court  of  v.  King  would  now  be  considered  as  of  any 
king's  bench  considered  this  as  a  sufficient  jus-  authority. 


L78  LEGISLATIVE    ASSEMBLIES.  [PaRT   D. 

ber  neglects  to  give  his  attendance,  when  ordered  by  the  assembly, 
wdthout  any  sufficient  excuse,  he  may  not  only  be  taken  into  cus- 
tody, and  punished,  but  may  also  be  expelled.  The  power  of 
expulsion,  in  such  a  case,  is  essential  not  merely  to  preserve  the 
dignity  and  authority  of  the  assembly,  but  likewise  to  the  right  of 
the  people  to  be  represented ;  as,  otherwise,  a  constituency  might 
be  deprived  of  the  services  of  a  member  whom  they  had  elected, 
and,  at  the  same  time,  be  prevented  from  electing  a  member  upon 
whose  services  they  could  rely. 

435.  When  members  absent  themselves  from  their  attendance 
upon  the  assembly,  without  leave  therefor,  or  after  leave  of  absence 
has  been  revoked,  there  are  several  modes  of  proceeding  which  may 
be  resorted  to  in  order  to  compel  them  to  attend.  The  house  of 
commons  has  sometimes  directed  the  speaker  to  write  circular 
letters  to  the  sheriffs,  to  summon  the  members  within  their  several 
counties  to  attend ;  or  to  take  measures  to  inform  the  several  con- 
stituencies of  the  manner  in  which  their  members  neglect  their  ser- 
vice ;  and  it  is  not  uncommon,  also,  to  order,  "  that  no  member 
shall  go  out  of  town  without  leave  of  the  house ; "  but  the  most 
common  mode  of  enforcing  attendance  is  by  what  is  denominated 
a  call  of  the  house. 

436.  The  proceedings  which  take  place  on  a  call  of  the  house, 
which  are  substantially  the  same  in  all  legislative  bodies,  having 
been  already  sufficiently  described,^  under  the  head  of  compelling 
the  attendance  of  absent  members,  it  is  only  necessary  to  refer  to 
them  in  this  place. 

437.  A  call  of  the  house,  though  it  is  usual  to  give  previous 
notice  thereof,  by  passing  an  order  for  the  purpose  some  days 
beforehand,  is,  in  fact,  incidental  ^  to  the  general  business  and  con- 
dition of  the  assembly,  and  a  motion  therefor  may  be  made  at  any 
time,  and  upon  any  business  ;  ^  and,  unless  restrained  or  regulated 
by  some  rule,^  will  take  precedence  of  and  suspend  any  other 
motion  then  pending,  whether  principal  or  subsidiary ;  thus,  on  a 

1  Ante.  §  265  to  270.  was  not,  (J  of  H.  23d  Cong.  1st  Sess.  341;  J. 

8  J.  of  H.  20th  Cong.  1st  Sess.  1041.  of  H.  23d  Cong.  2d  Sess.  368;  J.  of  H.  26th 

«  J.  of  H.  21st  Cong.  1st  Sess.  669.  Cong.  1st  Sess.  233;  ,L  of  H.  32d  Cong.  1st 

*  The  house  of  representatives  of  the  United  Sess.    813;    Reg.  of  Deb.   X.  Part  IL    2735, 

States,  after  different  decisions  upon  the  point  2736);  finally  adopted  a  rule,  that  on  motion 

whether  a  call  of  the   house   was  in  order  for  the   previous  question  and   prior  to  the 

pending  a  motion  for  the  previous  question,  seconding  of  the  same,  a  call  of  the  house 

as,  that  it  was,  (J.  of  H.  19th  Cong.  2d  Sess.  should  be  in  order;  but  that  after  a  majority 

264;  J.  of  H.  26th  Cong.  1st  Sess.  233,  1081;  shall  have  seconded  the  motion,  no  call  shall 

Beg.  of  Deb.  XI.  Part  II.  1332,  1333,  1337,  be  in  order  prior  to  the  decision  of  the  main 

1338;  Cong.   Globe,  XIIL  335);    and  that  it  question.     (Rule  60.) 


ChAI'.  III.]  FORMALITIES   OF  PROCEEDING.  179 

motion  to  recommit  with  instructions,^  or  to  postpone  indefinitely, 2 
or  for  the  previous  question,'^  or  after  the  latter  has  been  sus- 
tained,'* a  call  of  the  house  may  be  moved  for,  and,  if  sustained, 
will  supersede  these  motions  respectively,  as  well  as  the  subjects 
upon  which  they  are  moved,  until  the  proceedini^s  upon  the  call 
are  at  an  end.  The  business  thus  suspended  then  revives  again 
and  proceeds  as  before.  The  motion  for  a  call  of  the  house,  being 
merely  incidental,  can  only  be  decided  by  a  direct  vote,  and  not  by 
an  order  to  lie  on  the  table;''  and,  on  this  motion,  even  under  a 
general  provision  to  that  effect,  it  is  not  in  order  to  ask  to  be 
excused  from  voting.*" 

438.  A  second  call  cannot  be  moved  for,  when  the  first  is 
decided  in  the  afTirmative,  inasmuch  as  there  cannot  be  two  calls 
at  once : "  nor  if  the  first  motion  is  decided  in  the  negative  can 
there  be  a  second,  until  some  intervening  business  has  taken  place.^ 
While  the  proceedings  are  going  on  the  assembly  may  pass  any 
orders,  as,  for  example,  that  absent  members  shall  be  brought  in  to 
make  their  excuses  on  a  futtue  day,^  or  that  members  absenting 
themselves  after  the  first  call  shall  be  sent  forj^*^  which  fairly  relate 
to  the  subject. 

439.  The  proceedings  on  a  call  of  the  house  may  be  terminated 
at  any  time  by  a  vote,^i  or  by  an  adjournment  of  the  assembly,'"-  in 
which  case,  members  under  arrest  are  thereby  discharged.^-^  In  the 
mean  time,  members  under  arrest,  though  personally  present,  are 
not  allowed  to  participate  in  the  proceedings,  or  recognized  as 
members  of  the  assembly,  by  the  presiding  officer.^"*  A  call  of  the 
house  is  a  matter  of  business,  which  can  only  take  place  in  virtue 
of  an  order  for  that  purpose  made  when  a  quorum  of  the  assembly 
is  present ;  but  it  may,  sometimes,  however,  in  virtue  of  a  special 
rule,  be  authorized  by  less  than  the  ordinary  quorum,  for  the  pur- 
pose of  compelling  the  attendance  of  absent  members.^^  In  these 
cases,  the  assembly  may  take  all  the  measures  that  properly  belong 
to  a  call,  as,  for  instance,  the  imposition  of  a  fine  for  non-attendance,^'' 

1  J.  of  H.  10th  Cong.  2d  Sess.  264.  "  J.  of  H.  IX.  651 ;  J.   of  H.  20th  Cong.  2d 

2  J.  of  H.  20th  Cong.  1st  Sess.  1041.  Sess.  375. 

8  J.  of  H.  26th  Cong.  1st  Sess.  233.  "Cong.   Globe,    XVII  I.  60;    Cong.  Globe, 

♦  J.  of  H.  20th  Cong.  1st  Sess.  1041,  656,  657.  XXI.  1472. 

6  Cong.  Globe,  XIII.  335.  "  Cong.     Globe,    XV.  516;     Cong.    Globe, 

«  J.  of  H.  31st  Cong.  1st  Sess.  1538, 1539.  XVIII.  926,  928,  929. 

'  Cong.  Globe,  VIII.  361.  "  Cong.    Globe,  XVIII.  928;  but  see   Cong. 

8  Cong.  Globe,  XX.  177,  178.  Globe,  XIII.  602. 

•J.  of  II.  29th  Cong.  1st  Sess.  1045,  1046;  «  The    quonim    for    this     purpose    iu    the 

J,  of  H.  30th  Cong.  1st  Sess.  1035,  1036.  lower  branch  of  congress  is  15. 

w  J.  of  H.  25th  Cong.  2d  Sess.  1289,  1300;  "  Cong.  Globe,  VIU.  287. 
Cong.  Globe,  VIII.  361 ;  Cong.  Globe,  XVIII. 
936. 


180  LEGISLATI^TE   ASSEMBLIES.  [PaRT    II. 

^^'ithout  the  presence  of  the  ordinary  quorum ;  and  on  any  question 
that  may  be  taken  by  less  than  a  quorum,  it  is  competent  for  a  less 
number  to  order  the  question  to  be  taken  by  yeas  and  nays.^ 

440.  It  will  be  perceived,  that  a  call  of  the  house  only  operates 
to  compel  the  attendance  and  presence  of  members  on  the  particu- 
lar day  on  which  the  call  is  ordered  to  take  place,  or  on  the  day  or 
dayji,  to  which  the  call  may  be  postponed ;  but  not  during  the  inter- 
mediate time,  or  afterwards.  Attempts  are  sometimes  made  to 
compel  members  not  merely  to  attend  at  particular  times,  but  to 
continue  their  attendance ;  as,  for  example,  by  an  order  Ihat  no 
member  do  presume  to  go  out  of  town  without  leave  of  the  house. 
An  old  statute  of  6  Henry  8,  ch.  16,  holds  out  an  inducement  to 
members  to  attend,  by  providing  that  every  member,  who  absents 
himself,  without  Ucense  from  the  house,  shall  lose  his  wages  ;  but 
as  the  provision  for  wages  has  long  since  become  obsolete  in  Eng- 
land, the  penalty  inflicted  by  this  statute  has  now  no  longer  any 
existence. 

441.  When  members  absent  themselves  from  their  places  merely, 
their  attendance  may  be  enforced  when  necessary,  on  particular 
occasions,  by  sending  the  officers  of  the  house  to  summon  them ;  as, 
for  example,  it  is  a  common  proceeding,  when  the  house  of  com- 
mons is  going  upon  very  important  business,  to  send  the  sergeant 
with  the  mace  into  Westminster  Hall,  and  the  places  adjacent,  to 
summon  the  members  to  attend  the  service  of  the  house.  It  seems 
to  be  a  practice  recently  introduced  in  the  house  of  commons, 
before  proceeding  to  a  division,  to  summon  members  in  the  rooms 
and  places  adjoining,  to  attend  in  the  house,  by  ringing  a  bell  called 
the  division  bell.  The  same  summons  is  given  when  the  speaker 
is  called  upon  to  count  the  house,  on  a'  suggestion,  that  forty  mem- 

•bers  are  not  present. 

442.  The  subject  of  the  attendance  of  the  members  of  a  legis- 
lative assembly  may  be  left  to  stand  upon  the  common  parlia- 
mentary law,  or  it  may  be  regulated  by  a  special  rule,  if  expedient. 
In  the  senate  of  the  United  States  it  has  not  hitherto  been  found 
necessary  to  resort  to  a  call  of  the  house  to  enforce  the  attendance 
of  the  members; 2  some  mUder  measure  having  been  sufficient  for 
that  purpose.  In  the  house  of  representatives  of  the  United  States, 
which  is  a  more  numerous  body,  a  call  of  the  house,  which  is  there 
regulated  by  special  rules,^  is  almost  a  daily  proceeding;  being 
incidental  to  other  business,  and,  with  an  exception  or  two,  always 

»J.   of  H.  32d  Cong.   Ist  Sess.  651,  652,  2  Reg.  of  Deb.  IV.  Part  1. 773 ;  Cong.  Globe, 

727;  J.  of  H.  32d  Cong.  2d  Sess.  87, 145.  XXI.  1533. 

«  Rules  50,  62,  63,  64. 


Chap.  III.]  formalities  of  proceedino.  181 

in  order.  In  that  house  a  call  is  usually  ordered  when  the  num- 
ber of  members  present  falls  below  a  quorum ;  provided  there  are 
fifteen  members  present,  that  being  the  smaller  number  fixed  upon 
by  the  house,  in  pursuance  of  the  constitution,  for  compeUing  the 
attendance  of  absent  members.  The  only  other  thing  that  can  be 
done,  without  a  quorum,  and  for  this  no  particular  number  is  neces- 
sary, is  to  adjourn.  When  a  call  of  the  house  takes  place  in  this 
assembly,  no  time  is  fixed  upon  beforehand,  and  the  proceedings, 
which,  if  thought  proper,  may  at  any  time  be  suspended,  are  all 
immediate. 

443.  A  practice  prevails  in  both  houses  of  the  British  parliament, 
and  in  congress,  growing  out  of  the  di\asion  of  these  assemblies 
into  distinct  political  parties,  by  means  of  which  the  absence  of  a 
member  is  ordinarily  looked  upon  with  more  indulgence.  Two 
members,  of  diflerent  parties,  "  pair  off,"  as  it  is  called,  that  is,  they 
agree  with  each  other  to  be  absent  at  the  same  time ;  by  which 
arrangement  a  vote  is  neutralized  on  both  sides  of  every  political 
question,  which  arises  during  its  existence,  the  relative  numbers  of 
the  votes  remaining  the  same,  as  if  both  the  absent  members  were 
present.  Members  sometimes  pair  off",  not  only  upon  particular 
questions,  or  for  one  sitting,  but  for  several  weeks  or  even  months. 
This  practice  is  not  recognized  as  a  parliamentary  proceeding.  In 
congress,  it  sometimes  happens,  that  only  one  of  the  members,  by 
whom  this  agreement  is  made,  is  actually  absent ;  in  which  case 
the  member  present  declines  to  vote;  giving,  as  an  excuse,  if  need 
be,  the  fact,  that  he  has  paired  oflf  ^vith  such  a  member.  The 
excuse  is  always  admitted  by  the  house. 

444.  Members  of  the  house  of  commons  •formerly  received  wages 
fi-om  the  boroughs  and  ])laces,  which  they  represented.  In  the  time 
of  Edward  III.  four  shillings  a  day  were  allowed  to  a  knight  of  the 
shire,  and  two  shillings  to  a  citizen  or  burgess.  This  charge,  in  the 
case  of  poor  and  small  communities,  was  considered  as  too  great 
an  evil  to  be  compensated  by  the  possible  benefit  of  representation. 
But  this  practice  has  for  a  long  time  been  obsolete.  Andrew  Mar- 
veil,  the  poet,  who  died  in  1678,  and  who  had  been  a  member  from 
the  time  of  the  restoration,  in  1660,  is  said  to  have  been  the  last 
person,  who  accepted  wages  for  his  attendance  as  a  member.  The 
only  members  of  the  house  of  commons,  who  now  receive  wages, 
as  such,  are  the  speaker,  who  receives  an  annual  salary  of  five 
thousand  pounds  sterling,  the  use  of  a  furnished  residence,  and  of 
a  service  of  plate,  and  the  chairman  of  the  committee  of  the  whole 
on  ways  and  means,  who  receives  an   annual  salary  of  fifteen  hun* 

16 


182  LEGISLATIVE    ASSEMBLIES.  [PaRT    II. 

ired  pounds  sterling.  The  latter  takes  the  chair,  whenever  the 
house  is  in  committee  of  the  whole,  and,  by  a  rule  recently  adopted, 
is  authorized  to  take  the  chair  of  the  house,  as  speaker,  during  the 
temporary  absence  of  that  officer. 

445.  In  this  country,  the  members  of  legislative  bodies  are  paid 
for  their  services  and  expenses  as  such,  either  by  the  constituencies 
which  they  represent,  or  which  is  the  most  common  mode,  from  the 
public  treasury ;  and,  in  most  of  the  States,  the  compensation  of 
the  members  has  been  deemed  of  sufficient  importance  to  be  made 
the  subject  of  constitutional  provision.  By  the  constitution  of  the 
United  States,  and  in  those  of  most  of  the  States,  provision  is 
made  for  the  compensation  of  the  members  of  the  legislature  by 
law,  for  their  travel  and  attendance,  and  for  payment  thereof  out 
of  the  public  treasury;  and,  by  many  of  them,  provision  is  also 
made,  that  no  law  increasing  or  diminishing  the  rate  of  compensa- 
tion existing  at  any  time  shall  take  effect  until  after  the  termination 
of  the  legislature  by  which  it  is  enacted.  In  Maine,  a  law  increas- 
ing the  compensation  is  only  required  to  be  prospective ;  and,  in 
Massachusetts,  New  Hampshire,  and  Maine,  in  order  to  entitle 
members  to  their  travelling  expenses,  they  are  required  to  attend 
seasonably,  and  not  to  depart  without  leave.  The  presiding  officers, 
when  they  are  members  of  the  bodies  over  which  they  preside, 
receive  usually  additional  compensation  for  performing  the  duties 
of  the  chair. 


CHAPTER    FOURTH. 

OF    THE    FUNCTIONS    OF    THE    EXECUTIVE    IN    CONNECTION   WITH 
THE    LEGISLATIVE    DEPARTMENT. 

446.  The  functions  of  the  executive  department,  in  its  connec- 
tion with  the  legislative,  are  not  of  such  a  nature  as  to  require  the 
former  to  be  considered  as  a  branch  of  the  latter  ;  and,  though 
much  less  numerous  and  important  with  us  than  they  are  in  Eng- 
land; they  yet  touch  upon,  and  have  so  important  a  connection 
wdth,  the  legislative,  that  they  deserve  to  be  separately  enumerated, 
and  not  left  to  be  merely  alluded  to  incidentally.     Besides,  the 


Chap.  IV.]  formalities  of  PROCEEDiNa.  183 

executive  is  the  head  of  the  government,  as  the  legislative  depart- 
ment is  the  depository  of  the  sovereign  power,  of  all  free  countries. 
The  executive  is  always  ready  to  act,  in  the  perf(jrmance  of  its 
appropriate  functions;  the  legislative  is  only  called  into  operation 
occasionally,  or  at  stated  periods,  with  consideraljle  intervals. 
When  the  legislature  is  organized  and  proceeding  with  the  public 
business,  it  is  said  to  be  in  session ;  the  interval,  when  it  is  not  in 
session,  is  usually  denominated  a  recess.  The  executive  is  con- 
nected with  the  legislative  department,  at  the  commencement  and 
close,  and  during  the  continuance  of  each  regular  session,  of  the 
latter. 

447.  The  British  parliament  is  convened  and  held,  at  the  time 
and  place  appointed  by  the  king  for  the  pmpose,  in  virtue  of  his 
royal  proclamation,  and  of  the  writs  of  summons  and  election, 
issued  in  p,ursuance  thereof  by  the  chancellor ;  it  is  continued,  from 
time  to  time,  at  the  king's  pleasure,  by  what  is  called  a  proroga- 
tion;^ and  is  finally  dissolved  by  the  same  authority,  or  by  the 
termination  of  that  authority  by  the  demise  of  the  crown.  Accord- 
ing to  the  theory  of  the  British  constitution,  as  it  stood  not  many 
years  since,  there  was  no  legal  restriction  upon  the  power  of  the 
king,  in  any  of  these  particulars ;  he  might  neglect  altogether  to 
call  a  parliament ;  or  he  might  call  one  and  keep  it  in  existence 
during  the  whole  of  his  reign ;  or  he  might  call  parliaments  and 
dissolve  them  as  frequently  or  unfrequently  as  suited  his  conven- 
ience or  pleasure.  But  it  is  now  provided  by  sundry  statutes,  that 
every  parliament,  unless  sooner  dissolved  by  the  king,  or  by  his 
death,  shall  have  continuance  for  seven  years  and  no  longer ;  -  that, 
in  all  cases,  writs  shall  be  issued  for  the  calling  of  a  new  parlia- 
ment, within  three  years  from  the  determination  of  the  next  pre- 
ceding one ;  and  that,  on  the  demise  of  the  crown,  the  parliament 
then  in  being  shall  continue,  or  the  last  preceding  parliament  be 
revived,  and  proceed  to  act,  for  the  term  of  six  months,  unless 
sooner  prorogued  or  dissolved.^  At  the  time  fLxed  for  the  com- 
mencement of  a  new  parliament,  it  is  usual  to  postpone  it,  until  a 
convenient  season,  for  the  despatch  of  business,  by  one  or  more 
successive  prorogations,  when  it  assembles  for  that  purpose,  and 
in  a  meeting  of  both  branches  in  the  house  of  lords,  the  sovereign. 

1  The  rijrht  of  the  king  to  order  an  adjourn-  should   take  place,  his  wishes  are  generally 

roent,  which,  as   will  be   seen   hereafter,   is  acceded  to;  as,  otherwise,  a  prorogation  would 

diflferent  as  to  its  legal  effect  from  a  proroga-  be  sure  to  follow, 
tion,  is  not  admitted  in  theory;  but,  whenever         -  ll;it*ell,  11.  3S4. 
ae  signifies  his  pleasure  that  an  adjournmeut         '  May,  W,  41. 


184  LEGISLATIVE   ASSEMBLIES.  [PART    IL 

in  a  speech  from  the  throne,  declares  the  causes  of  summoning  the 
parliament.     Sometimes  the  sovereign  does  not  attend  in  person, 
but  appoints  commissioners  by  whom  the  causes  of  summons  are 
declared.     When  this  is  done,  the  commons  return  to  their  house 
and  the  business  of  the  session  proceeds.     The  first  thing  usually 
done  in  both  houses,  though  this  is  by  no  means  imperative,  is  to 
take  into  consideration,  for  the  purpose  of  responding  to  the  senti- 
ments contained  in,  the  royal  speech.     On  the  proposed  answers  in 
both  branches,  the  members  in  opposition  usually  move  their  amend- 
ments, which  are  discussed  and  decided  on  party  grounds.    Besides 
the  usual  speech,  at  the  commencement  of  the  session,  in  which  the 
general  concerns  of  the  nation  are  treated  of,  the  sovereign  after- 
wards during  the  session  communicates  important  matters,  to  both 
branches,  or  either  of  them,  by  messages  for  the  purpose.     These 
messages  are  generally  in  waiting,  but  are  sometimes  vcjrbal.     The 
sovereign  intervenes    also,   in  the   course   of  the   session,  for   the 
approval  of  bills,  which  is  done,  in  the  presence  of  both  branches, 
by  the  sovereign  in  person  or  by  commissioners,  in  the  manner  that 
parliament  is  first  opened.     At  the  end  of  the  session,  parliament 
is  prorogued  or  dissolved  in  the  same  manner.     This  is  understood 
to  have  been  substantially  the  form  of  proceeding  in  all  our  legis- 
lative assembhes  previous  to  the  revolution,  as  it  is  now  in  the 
colonial  and  provincial  legislatures   of  Great  Britain.     But  very 
considerable  changes  have  been  introduced  by  our  constitutions,  and 
the  practice  under  them,  since  the  period  referred  to. 

448.  In  this  country,  the  times  of  holding  the  legislative  assem- 
bhes, and  the  periods  for  which  they  are  respectively  elected,  are 
fixed  by  constitutional  provisions ;  and,  when  assembled,  they  are 
not  subject  in  any  degree  or  manner  to  the  control  of  the  executive 
authority ;  though,  in  most  of  the  constitutions,  power  is  given  to 
the  executive  to  convene  the  legislature  on  extraordinary  occasions, 
and  to  fix  the  time  of  adjournment  or  prorogation,  in  case  of  a  dis- 
agreement in  relation  thereto  betw^een  the  two  branches.  In  con- 
gress, from  its  first  assembhng  under  the  constitution,  and  during 
the  administrations  of  Washington  and  the  elder  Adams,  it  was 
the  custom  of  the  president  to  open  each  session,  in  person,  by  an 
address  to  both  branches,  assembled  together  for  the  purpose  in  the 
representatives'  chamber.  This  communication  was  usually  shorter 
and  more  general  in  its  character,  than  in  more  modern  times,  and 
was  answered  in  the  same  manner,  by  each  branch  in  person. 
With  the  advent  of  Mr.  Jefferson  to  the  presidency  the  modern 
practice  was  introduced.     The  president,  instead  of  a  short  address, 


Chap.  IV.]  formalities  of  proceeding.  185 

transmitted  a  more  elaborate  message  in  writing  to  both  branches, 
with  his  reasons  for  adopting  that  form.  Answers  were  dispensed 
with ;  but  the  different  subjects  treated  of  in  the  message  were 
taken  into  consideration.  This  practice  has  ever  since  continued 
in  congress,  and  has  been  adopted  in  the  State  governments,  in 
which,  however,  as  well  as  in  congress,  it  is  not  imperative  but 
optional.  Communications  of  the  executive,  to  the  two  branches, 
or  either  of  them,  in  the  course  of  a  session,  are  by  message.  It  is 
scarctely  necessary  to  observe,  that  these  messages  are  for  the  infor- 
mation of  the  bodies  to  whom  they  are  communicated ;  who  may 
consider  of  the  matters  therein  referred  to  or  not  at  their  pleasure; 
though  it  is  customary  to  do  so  out  of  respect  to  the  executive. 

4-19.  It  is  the  invariable  practice  therefore  in  all  our  legislatures, 
(and  made  necessary  by  express  provision  in  some  of  the  consti- 
tutions,) for  the  governor,  president,  or  other  executive  head,  at  the 
commencement  of  every  session,  whether  regular  or  special,  to 
make  a  communication  to  the  t\vo  branches,  either  by  message  or 
in  person,  usually  by  message,  touching  the  general  affairs  and  con- 
dition of  the  State,  or  relating  to  the  particular  subject  for  which 
the  legislature  is  convened,  and  to  recommend  to  them  such 
measures  as  he  may  deem  expedient.  These  communications  may 
or  may  not  be  accompanied  with  other  written  documents,  as  the 
case  may  be.  When  other  documents  are  referred  to  in  a  verbal 
address,  they  are  usually  sent  in  afterw^ards  by  message. 

450.  In  parliament,  in  congress,  and  in  all  the  States  of  the 
Union,  except,  it  is  believed,^  Rhode  Island,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  Tennessee,  and  Ohio, 
the  executive  is  invested  with  a  veto  power  in  matters  of  legis- 
lation ;  or  rather  it  would  be  more  correct  to  say,  that  every  act 
of  legislation  of  the  two  branches,  though  drawn  up  in  the  form 
of  a  law,  before  it  can  become  such,  must  be  approved  and  signed 
by  the  executive.  In  parliament  the  veto  is  absolute ;  but,  inas- 
much as  that  body  is  now  so  constituted,  that  nothing  can  pass 
which  is  not  agreeable  to  the  sovereign,  there  has  been  no  exercise 
of  the  veto  power,  in  its  direct  form,  for  many  years.  In  this 
country  the  veto  power  is  not  absolute,  but  conditional ;  the  legis- 
lative branches  being  authorized,  in  certain  cases,  to  pass  a  law 
from  which  the  executive  approval  is  withheld ;  and  the  executive 
being  bound  to  exercise  his  right  of  approval  or  disapproval,  within 

1  If  there  are  any  others,  in  the  tliirty-one     hiive  escaped  the  author's  notice,  in  a  pretty 
States,  of  which  the  Union  is  composed,  thev     careful  search. 

16* 


186  LEGISLATIVE    ASSEMBLIES.  [PaBT   II. 

a  given  number  of  days.  The  direct  interference  of  the  executive, 
in  any  other  form,  would  justly  be  considered  as  unparliamentary, 
and  unconstitutional. 

451.  In  this  country  the  executive  is  very  generally  invested 
with  authority  either  by  constitutional  provision,  or  by  statute,  on 
the  requisition  of  the  legislative  assemblies,  to  issue  writs  of  elec- 
tion to  fill  vacancies  occurring  therein.  This  function  of  the 
executive,  and  others,  with  which  it  is  invested,  in  aid  of  the  legis- 
lative, in  the  matter  of  adjournment,  prorogation,  or  dissolution,  are 
more  appropriately  noticed  elsewhere. 


CHAPTER    FIFTH. 

OF  VACANCIES,  AND   ELECTIONS    TO  FILL  THEM. 

452.  Vacancies  may  occmr  in  a  legislative  body,  in  consequence 
of  the  death,  removal,  refusal  to  qualify,  resignation,  expulsion,  or 
disqualification  of  the  members,  or  of  their  return  or  election  being 
vacated  by  the  assembly ;  and,  as  it  is  of  the  highest  importance, 
both  to  the  immediate  constituency,  and  to  the  whole  State,  that 
the  representative  body  should  at  aU  times  be  complete  and  entire, 
it  is  essential,  that  there  should  somewhere  exist  a  power  to  take 
the  necessary  steps  for  the  filling  of  such  vacancies. 

453.  In  England,  the  house  of  commons  has  always  regarded 
the  right  of  determining  upon  the  existence  of  vacancies  among  its 
members,  and  of  taking  measures  to  fill  them,  as  essential  to  its 
free  and  independent  existence ;  and  has  consequently  asserted  and 
maintained  it  as  a  most  important  and  undoubted  privilege,  resting 
upon  the  same  foundation  with  the  right  of  determining  upon  the 
elections  and  returns  of  its  members. 

454.  When,  therefore,  the  house  has  determined  that  a  vacancy 
exists,  the  practice  is  for  the  speaker,  by  the  order  of  the  house,  to 
send  his  warrant  to  the  clerk  of  the  crown  in  chancery,  directing 
him  to  issue  a  writ  to  the  proper  ofTicers,  requiring  them  to  proceed 
to  a  new  election,  for  the  county,  borough,  or  city,  which,  by  means 
of  the  vacancy,  is  deprived,  either  wholly,  or  in  part,  of  its  repre- 


Chap.  V.]  vacancies.  187 

sentation.  The  wTit  is  accordingly  issued,  an  election  takes 
place,  and  the  person  elected  is  returned,  in  the  manner  already 
described.^ 

455.  This  mode  of  proceeding,  being  solely  in  virtue  of  the 
authority  of  the  house,  cannot  of  course  take  place  at  any  other 
time  than  during  a  session.  In  regard  to  vacancies  occurring  in  a 
recess,  the  speaker  is  authorized  by  statute  (24  Geo.  III.  c.  26)  to 
issue  his  warrant  for  a  new  wnrit  of  election,  upon  the  existence  of 
the  vacancy  being  certified  to  him,  by  two  of  the  members,  and 
notice  of  it  being  previously  published  by  him  in  the  London  Ga- 
zette ;  and,  in  order  to  secure  the  filling  of  all  such  vacancies,  the 
speaker  is  also  authorized  by  statute  to  appoint  certain  members  to 
issue  the  warrant,  in  case  of  his  death,  vacation  of  his  seat,  or  his 
absence  from  the  realm.  The  vacancies,  which  may  thus  be  filled, 
are  those  only  which  are  occasioned  by  the  death  or  bankruptcy  of 
members,  or  from  their  being  elevated  to  the  peerage. 

456.  In  determining  upon  the  existence  of  a  vacancy,  the  house 
acts  in  its  judicial  capacity ;  sometimes  instituting  a  previous  in- 
quiry, where  the  law  or  the  fact  is  doubtful ;  but  proceeding  at 
once  if  no  question  is  made  as  to  either.  If,  for  example,  the  death 
of  a  member,  or  his  elevation  to  the  peerage,  is  notorious,  the  house 
proceeds  at  once  to  order  the  speaker  to  issue  his  warrant  for  a  new 
writ  of  election.  If  upon  the  motion  being  made,  there  appears  to 
be  any  doubt  concerning  the  fact,  supposed  to  create  the  vacancy, 
the  order  is  deferred  until  the  house  is  in  possession  of  more  certain 
information.  If,  after  the  issuing  of  the  -v^nrit,  it  is  discovered  that 
the  house  was  misinformed,  the  course  is  to  direct  the  speaker  to 
issue  his  warrant  for  a  supersedeas  of  the  writ.  Li  the  case  of  va- 
cancies occurring  in  the  recess,  the  proceedings  must,  of  course,  be 
subject  to  the  subsequent  revision  of  the  house.^ 

457.  In  this  country,  writs  of  election  to  fill  vacancies  are  either 
issued  directly  by  the  assemblies  themselves,  or,  on  their  authority, 
by  the  governor.     But  there  are  various  constitutional'^  and  statu- 

1  Hatsell,  IT.  245,  note.     It  is  a  breach  of  ery  of  the  writ  was  ordered  to  forbear  deliver- 

privilege,  and  punishable  as  such,  to  delay  the  ing  it  until  further  directions.     The  member 

delivery  of  such  a  writ.     Hans.  (1)  IX.  974.  proved  to  be  alive,  and  a  writ  of  siipersedtas 

*  In  1765,  a  new  writ  of  election  was  or-  was  accordingly  issued  a  few  days  afterwards, 

dered,  for  Devizes,  in  the  room  of  a  member,  ^  jf  jg  expressly  provided  in  some  of  the 

who  was  said  to  be  deceased.     The  next  day,  constitutions,  that  members  elected  to  fill  va- 

further  iufomiation  being    received,    which  cancies  shall  hold  their  offices  only  for  the 

made  it  doubtful,  whether  the  member  w:i3  unexpired  term ;  but  this  can  hiirdly  be  neces- 

dead,  the  messenger  intrusted  with  the  deliv-  sary  except  as  a  matter  of  precaution. 


188  LEGISLATIVE   ASSEMBLIES.  [PaRT   II. 

tory  provisions,  relating  to  the  filling  of  vacancies,  which,  in  some 
States,  supersede,  —  in  others,  extend,  —  and,  in  others  again,  are 
subsidiary  to, —  the  principle  which  has  just  been  stated,  namely, 
that  it  is  the  right  of  a  legislative  assembly  to  determine  upon  the 
existence  of  vacancies  among  its  members  and  to  take  measures  to 
fiU  them.  Some  of  these  provisions  relate  to  the  manner  in  which 
vacancies  are  to  be  filled ;  others  to  the  preliminary  measures  to  be 
taken  for  the  pm-pose.  The  most  important  requu-e  to  be  briefly 
noticed  ;  so  far  only,  however,  as  they  are  found  in  the  various  con- 
stitutions. 

458.  In  the  States  of  Massachusetts,  Maine,  and  New  Hamp- 
shire, if  the  full  number  of  senators  is  not  elected  at  the  general 
election,  the  vacancies  are  filled,  on  the  meeting  of  the  legisla- 
ture, by  the  joint  ballot  of  the  representatives  and  such  senators 
as  are  elected,  from  among  the  persons  voted  for  and  not  elected 
by  the  electors ;  and,  in  the  same  manner,  all  vacancies  afterwards 
occurring  in  the  senate  are  to  be  fiUed.  In  these  States,  therefore, 
the  principle  of  parliamentary  law,  which  has  just  been  stated, 
is  so  far  superseded  by  constitutional  provisions,  as  relates  to  fill- 
ing vacancies  in  the  senate,  but  not  as  to  the  determination  of  the 
existence  of  those  vacancies. 

459.  In  aU  the  other  States,  and  in  the  second  branch  of  the  leg- 
islature, in  the  States  just  mentioned,  vacancies  are  fiUed  in  the 
same  manner  as  the  elections  are  originally  made ;  in  some  of  them 
in  virtue  of  the  principle  alluded  to ;  and,  in  others,  in  virtue  of 
constitutional  or  legal  regulations  touching  the  existence  of  vacan- 
cies and  elections  to  fiU  them. 

460.  Where  the  constitution  is  silent  on  the  subject,  or  where  the 
provision  is  general,  that  aU  intermediate  vacancies  shall  be  filled ;  or 
where  the  constitution  provides  for  the  regulation  by  law,  in  what 
manner  and  by  whom  writs  of  election  shall  be  issued  to  fill  vacan- 
cies ;  in  aU  these  cases,  the  matter  may  be  regulated  by  law ;  but, 
if  not  so,  the  assembly,  in  which  a  vacancy  occurs,  whether  before 
or  after  the  sitting  commences,  or,  in  the  recess,  may,  while  in 
session,  issue  a  precept  or  take  the  proper  order  for  an  election ;  but 
whether  the  electors,  if  the  vacancy  occurs  before  the  meeting  of 
the  assembly  or  in  a  recess,  or  the  assembly  refuses  to  issue  a 
precept,  may,  of  themselves,  proceed  to  an  election,  when  the 
nature  of  the  constituency  will  admit  of  it,  is  a  question  not  with- 
out difiiculty. 


Chap.  V.]  vacancies.  189 

461.  Where  the  constitution  contains  a  general  provision,  that 
when  vacancies  occur  in  either  branch,  the  governor  shall  issue 
writs  of  election,  the  legislature  may  undoubtedly  regulate  the 
exercise  of  this  power,  by  law ;  but  if  no  such  regulation  is  made, 
it  will  be  the  duty  of  the  governor,  when  the  legislature  is  in  ses- 
sion, to  issue  writs  of  election,  on  being  officially  notified  of  the 
existence  of  a  vacancy,  by  the  body  in  which  it  occurs ;  and,  at 
other  times,  if  thereunto  authorized  by  constitution  or  law,  to  act  in 
the  matter  upon  his  own  judgment  and  discretion,  both  in  regard 
to  the  existence  of  a  vacancy,  and  the  necessity  or  expediency 
of  filling  it,  subject,  of  course,  to  the  revision  of  the  legislative 
body. 

462.  Where  the  constitutional  provision  on  this  subject  is,  that 
Avhen  vacancies  occur,  the  presiding  officer  shall  issue  writs  of  elec- 
tion to  fill  them,  provision  may  doubtless  be  made  by  law,  as  in 
reference  to  the  house  of  commons,  for  the  issuing  of  writs  of  elec- 
tion in  the  recess  of  the  legislature.  If  there  is  no  such  provision, 
vacancies  occurring  in  the  recess  cannot  be  filled,  inasmuch  as  the 
constitutional  provision  alluded  to  can  only  be  considered  as  de- 
claratory of  the  ordinary  principle  of  parliamentary  law. 

463.  In  several  of  the  States,  writs  to  fill  vacancies  are  to  be 
issued  by  the  presiding  officers,  during  the  session  of  the  legisla- 
ture ;  at  other  times,  by  the  governor. 

464.  By  whatever  authority,  however,  or  in  whatever  manner, 
writs  of  election  are  issued,  as  well  as  when  the  electors  proceed  to 
an  election  of  themselves,  for  the  purpose  of  filling  vacancies,  the 
proceedings  are  necessarily  subject  to  the  revision  of  the  assembly 
itself;  by  whom,  both  the  existence  of  the  vacancy,  and  the  validity 
of  the  election  to  fill  it,  are  to  be  judged  of,  when  the  person  elected 
presents  himself  to  take  his  seat ;  and,  it  is  supposed,  generally,  that 
whatever  constitutional  pro\dsions  there  may  be,  in  any  State,  on 
this  subject,  writs  of  election  to  fill  vacancies  may  be  further  regu- 
lated by  law,  provided  only  that  such  regulations  are  consistent 
with  the  constitution,  and  do  not  infringe  the  great  principle  of 
parliamentary  law  above  stated. 

465.  Having  thus  considered  of  the  authority,  and  of  the  neces- 
sary measures  to  be  taken,  to  fUl  vacancies,  it  now  remains  to  con- 
sider in  what  manner,  and  when,  they  occur ;  but,  before  proceeding 
to  examine  the  subject  in  detail,  it  will  be  proper  to  point  out  a 
difference  between  the  political  law  of  England,  and  of  this  coun- 
try, in  reference  to  the  right  of  a  member  to  renounce  his  election 


190  LEGISLATIVE   ASSEMBLIES.  [PaRT   II. 

or  to  resign  his  seat.  In  England,  it  is  an  established  principle, 
that  every  person,  who  is  constitutionally  eligible  to  the  house  of 
commons,  may  be  elected  against  his  own  consent,  and  contrary  to 
his  desire,  and,  if  lawfully  chosen,  cannot  refuse  the  place  ;  ^  because, 
as  it  is  said,  "  The  country  and  the  commonwealth  have  such  an 
interest  in  every  man,  that  when  by  lawful  election  he  is  appointed 
to  this  pubUc  service,  he  cannot  by  any  unwillingness  or  refusal  of 
his  own,  make  himself  incapable ;  for  that  were  to  prefer  the  will 
or  contentment  of  a  private  man  before  the  desire  and  satisfaction 
of  the  whole  country,  and  a  ready  w^ay  to  put  by  the  sufficientest 
men,  who  are  commonly  those  who  least  endeavor  to  obtain  the 
place."  2 

466.  For  the  same  reason,  that  one  duly  elected  cannot  renounce 
his  election,  so,  after  having  been  qualified  and  taken  his  seat,  he 
cannot  resign  his  office.  But  this  principle  is  rendered  inoperative 
by  a  proceeding,  which  has  been  introduced  for  the  purpose,  the 
legal  effoct  of  which  is  to  vacate  the  seat.  The  statute,  6  Anne, 
ch.  7,  provides,  that  if  any  member  shall  accept  of  any  office  of 
profit  fi'om  the  crown,  his  election  shall  thereupon  become  void,  and 
a  writ  shall  issue  for  a  new  election,  as  if  he  were  naturally  dead. 
The  practice  alluded  to  is  to  obtain  some  office,  corresponding  to 
the  description  in  the  statute,  as  an  office  of  profit  under  the  crown, 
which  consequently  vacates  the  seat.  Certain  offices  are  made  use 
of  for  this  purpose,  which,  though  in  a  technical  sense  offices  of 
profit,  have  nevertheless  become  in  process  of  time  merely  nominal, 
and  are  conferred  by  the  crown  upon  any  member  who  desires  to 
obtain  them  in  order  to  vacate  his  seat.  The  offices  of  steward  or 
baihff  of  the  three  Chiltern  Hundreds,  and  of  the  manors  of  East 
Hendred  and  North- Stead,  are  of  this  description.  When  any 
member  wishes  to  vacate  his  seat  in  the  house  of  commons,  he 
signifies  his  desire  to  the  proper  officers  of  the  government  to  be 
appointed  to  one  of  these  offices.  The  appointment  being  con- 
ferred accordingly,  —  and  in  ordinary  cases  it  is  not  refused,  —  the 
member  immediately  notifies  the  speaker  that  his  seat  has  thereby 
become  vacant,  and  a  writ  is  ordered  for  a  new  election.  The  pur- 
pose of  the  appointment  being  thus  effected,  the  office  is  forthwith 


*  It  is  hardly  necessary  to  observe,  that,     or  resign  his  office  as  such,  and  all  other 
even  in  England,  this  principle  prevails  only     officers  may  resign  their  offices  at  pleasure, 
with  regard  to  members  of  the  hou»e  of  com-         «  Glanville,  101;  Comm.  Jour.  I.  724;  Same, 
mons;  the  speaker  of  that  body  may  refuse     201;    Fourth  Institute,  49;    Mule,  63;   May, 

435. 


'"^HAP.    v.]  VACANCIES.  191 

resigned,  to  be  conferred  on  the  next  member,  who  desires  to  make 
use  of  it  for  the  same  purpose.^  This  proceeding  is  alike  effectual 
before  and  after  a  member  has  been  qualified. 

467.  There  are  other  indirect  methods,  also,  of  renouncing  an 
election,  or  of  refusing  to  serve  in  parliament.  A  member  elect 
may  refuse  or  decline  to  take  the  oaths,-  in  which  case  he  must  be 
discharged  from  being  a  member ;  but,  in  such  a  case,  he  may  sub- 
ject himself  to  punishment,  as  for  a  contempt,  or  to  be  discharged 
with  some  degree  of  obloquy,  according  to  his  motives  and  con- 
duct.'^  So  a  member  may  refuse  or  decline  to  give  in  a  particular 
of  his  qualification  as  to  property,  in  which  case,  he  will  be  dis- 
charged.^ 

468.  In  this  country,  though  some  traces  of  the  principle,  that 
a  member  cannot  renounce  his  election  or  resign  his  office,  may 
still  be  found  in  the  laws  and  usages  of  some  of  the  older  States,  it 
seems  now  to  be  taken  for  granted,  and  to  be  considered  as  an  ad- 
mitted and  established  principle,  that  no  one  can  be  compelled  to 
serve  in  a  legislative  assembly,  against  his  will ;  and,  consequently, 
that  any  one  being  elected  may  decline  to  accept  the  offi^ce ;  but 
whether  having  been  elected  and  taken  his  seat,  he  may  resign  it  at 
his  pleasure,  and  without  the  consent  of  the  assembly  of  which  he 
is  a  member,  may  admit  of  some  question,  though  this  consent  is 
always  implied,  unless  there  is  some  expression  to  the  contrary. 

469.  Vacancies  may  occur,  before  the  meeting  of  the  assembly, 
by  members  chosen  thereto  declining  to  accept  the  office ;  after  the 
meeting,  by  their  declining  to  take  the  oaths  or  complying  with  the 
other  conditions,  if  any,  requisite  to  entitle  them  to  sit  and  vote ; 
after  the  organization,  by  resignation,  expulsion,  or  vacation  of  the 
election  or  return ;  and  either  after  or  before,  by  death,  disqualifica- 
tion, or  acceptance  of  a  disqualifying  office  or  employment.     If  the 

1  Jlay,  435;  Hatsell,  11.  55.  heard  in  snpport  of  his  claim,  but  the  house 

*  Douglass,  I.  283.  resolved  that  he  was  not  entitled  to  sit  or  vote, 

«  Soon  after  the  revolution,  in  1688,  two  unless  he  took  the  oath  of  supremacy;  and, 

persons  returned  as  members  refused  to  take  persisting  in  his  refusal,  a  writ  was  issued  for 

the  oaths,  and  were  discliarged;  a  third,  who  a  new  election. 

appears  to  have  equivocated  in  his  statements,  *  This  was    the    course    adopted    by    Mr. 

was  committed  to  the  tower  for  contempt.  Southey,  in  1826.     Being  elected  a  member, 

Comm.  Jour.  X.  131, 138.     A  more  recent  case  during  his  absence  from  the  country,  on  his 

is   that  of  Mr.  O'Connell,  in  1830,  (Comm.  return,  he  addressed  a  letter  to  the  speaker,  in 

Jour.  LXXXIV.  303,  311,  314,  325,)  who  de-  which  he  stated  for  the  information  of  the 

clined  to  take  the  oath  of  supremacy,  and  house,  that  ho  did  not  possess  the  qualifica- 

claimed  to  be  admitted  on  taking  the  oath  in  tion  of  estate  required  by  law.     A  new  elec- 

the  Roman  Catholic  Reliof  Act,  which  had  not  tion  was  accordingly  ordered.    Comm.  Joar 

then  come  into  operation.    Mr.  O'Connell  was  LXXXIV.  28. 


192  LEGISLATIVE    ASSEMBLIES.  [PaRT   II 

fact,  which  is  supposed  to  create  a  vacancy  occurs  while  the  assem- 
bly is  sitting,  the  existence  of  the  vacancy  must  be  judicially  ascer- 
tained and  declared,  before  measures  can  be  taken  to  fill  it.  If  it 
occurs  before  the  sitting  or  in  a  recess,  and  the  new  election  takes 
place  without  the  previous  authority  of  the  assembly,  the  existence 
of  a  vacancy  must  be  determined  upon  when  the  member  elected 
presents  himself  to  take  his  seat. 

470.  Members,  who  are  returned  to  fill  vacancies,  or  who  first 
take  their  seats,  after  the  assembly  has  commenced  its  sitting,  usu- 
ally cause  their  certificates  of  election  to  be  presented  to  the  assem- 
bly by  some  member,  and  are  then  introduced,  if  there  is  no  objec- 
tion, and  are  qualified  and  take  their  seats.  If  objection  is  made, 
or  the  return  is  questioned,  the  assembly  takes  such  action  in  the 
matter  as  it  may  think  proper,  before  the  member  is  allowed  to 
take  his  seat.  Such  members  are  entitled  to  take  seats,  and  to 
claim  and  exercise  the  privileges  of  members,  in  the  assembly, 
whether  a  quorum  is  present  therein  or  not,  but  they  cannot  be 
qualified,  by  taking  the  necessary  oaths,  untU  a  quorum  is  present.! 
The  qualification  of  newly  returned  members  is  a  question  of  privi- 
lege, which  may  be  brought  forward  at  any  time,^  even  when  a 
member  is  speaking,  who  may  be  interrupted  for  the  purpose,-^  and 
will  supersede  all  other  business  until  it  is  disposed  of.  A  peti- 
tioner, who  prevails  in  a  controverted  election,  and  is  adjudged  to 
have  been  duly  elected,  is  introduced,  or  is  present,  and  takes  his 
seat  in  the  same  manner.  Where  the  qualification  does  not  take 
place  in  the  assembly,  but  elsewhere,  as,  in  Massachusetts,  before 
the  governor  and  council,  the  assembly  appoints  a  committee  to 
Euccompany  the  member  to  the  proper  authority  to  be  qualified; 
and  upon  the  return  and  report  of  the  committee  the  member  takes 
his  seat  in  the  house.  A  remark  or  two,  with  reference  to  some  of 
the  principal  modes,  in  which  a  vacancy  may  occur,  and  with  refer- 
ence to  vacancies,  in  the  congress  of  the  United  States,  will  con* 
elude  the  subject  of  vacancies. 


Section  1.     Refusal  to  Accept. 

471.  A  person,  elected  a  member,  who  is  unwilling  to  serve  in 
that  capacity,  may,  on  being  notified  of  his  election,  refuse  to 
accept  the  office.     But  the  local  laws,  relative  to  elections,  are  so 

»  J.  of  H.  m.  80,  400;  but  see  J.  of  S.  IIL         «  Cong.  Globe,  X.  349,  350. 
411,  and  ante,  366.  a  Cong.  Globe,  XIII.  223. 


Chap.  V.]  vacancies..  193 

different  in  different  States,  that  it  can  only  be  remarked  in  general 
of  a  refusal  to  accept,  that  it  should  be  signified  to  the  electors 
themselves,  or  to  their  authorized  officers,  or  to  the  persons,  if  any, 
whose  duty  it  is  by  law  to  call  meetings  for  the  new  election  ;  pro- 
vided the  vacancy  can  constitutionally  and  legally  be  filled  before 
the  meeting  of  the  assembly;  but,  if  there  is  no  provision  by  law 
for  that  purpose,  or  if  the  determination  to  decline  the  office  is  not 
formed  until  it  is  too  late  for  a  new  election,  the  notice  of  non- 
acceptance  can  only  be  given  to  the  assembly  itself,  on  its  meeting. 

Section  II.    Refusal  to  Qualify. 

472.  One,  who  is  returned  a  member  of  a  legislative  assembly, 
and  assumes  a  seat  as  such,  is  bound  to  take  the  oaths  required  of 
him,  and  perform  such  other  acts  as  may  be  necessary  to  qualify 
him,  if  any,  to  discharge  the  duties  of  his  office.  K  a  member  elect 
refuses  to  qualify,  he  will  be  discharged  from  being  a  member,  with 
more  or  less  of  obloquy  or  none  at  all  according  to  the  circum- 
stances of  his  case ;  but  he  cannot  be  expelled,  because  he  cannot 
as  yet,  discharge  the  duties  of  a  member.^ 

Section  III.     Resignation. 

473.  After  the  meeting  of  the  assembly,  and  the  acceptance  and 
qualification  of  the  members,  any  one  may,  at  pleasure,  resign  his 
office,  which  will,  at  all  events,  be  effectual,  if  accepted,  unless  there 
is  some  express  provision  of  law  or  otherwise  to  the  contrary.  If  a 
member  desires  to  resign  whUe  the  assembly  is  in  session,  his  resig- 
nation should  be  made  to  the  assembly  itself;  if,  afterwards,  to  the 
officer,  if  there  is  one,  specially  provided  and  appointed  by  law 
to  receive  it;  and,  if  there  is  no  such  provision,  it  would  seem, 
that  the  right  of  resignation,  in  such  a  case,  cannot  be  exercised. 
A  resignation  takes  efiect,  from  the  time  when  it  is  accepted,  or 
presumed  to  be  so ;  or,  it  may  be,  when  it  is  received ;  or  when 
there  is  a  presumption  that  it  has  been  received. 

Section  IV.    Expulsion. 

474.  The  right  of  a  legislative  body  to  expef  a  member  will 

1  The  refusal  to  qualify  is  expressly  men-     it.  Comm.  Jour.  X.  131, 138;  Same,  LXXXII. 
tioned  in  some,  of  the  constitutions  as  one  of      28;  Same,  LXXXIV.  803,  311,  814,  325. 
the  grounds  of  a  vacancy.    See  instances  of 

17 


194  LEGISLATIVE    ASSEMBLIES.  [PaRT  IL 

come  under  consideration  hereafter,  as  one  of  the  powers  necessarily 
incident  to  every  such  body ;  it  is  mentioned  here  only  as  one  of 
the  modes  in  which  a  vacancy  may  occur.  Expulsion  being  the 
act  of  the  assembly  itself,  no  other  notice  or  proof  of  the  vacancy 
can  of  course  be  necessary.  The  discharge  of  a  member  is  the 
same  thing  as  expulsion,  in  a  less  ignominious  form ;  ^  as  the  latter 
is  always,  and  the  former  may  not  be,  an  adverse  proceeding. 


Section    V.      Adjudication    of   a   Controverted    Retltrn    and 

Election. 

475.  Another  mode,  in  which  vacancies  may  occur,  results  from 
a  judgment  pronounced  by  the  assembly  vacating  the  seat  of  a  mem- 
ber, whose  election  or  return  is  controverted.  Where  an  election, 
having  been  controverted,  is  adjudged  void,  a  vacancy  is  thereby 
created,  which,  in  general,  is  to  be  filled  by  a  new  election,  in  virtue 
of  a  wTit  or  precept  issued  from  the  assembly,  for  that  purpose.  In 
England,  if  it  appears,  in  the  investigation  of  an  election,  that  bri- 
bery and  corruption  have  been  practised  therein,  the  house  some- 
times suspends  the  issuing  of  the  writ,  with  a  view  to  further 
inquiry,  and  the  ultimate  disfranchisement  of  the  corrupt  constitu- 
ency by  an  act  of  parliament.^  In  Massachusetts,  where  no  such 
disfranchisement  can  take  place  by  law,  the  issuing  of  a  precept  for 
a  new  election  has  been  frequently  refused,  in  the  case  of  an  illegal 
election.^ 

Section  VI.    Death. 

476.  When  a  member  elect  dies  before  the  meeting  of  the  assem- 
bly, official  notice  of  the  fact  must  be  taken  by  the  person  or  per- 
sons, (if  there  is  any,)  whose  duty  it  is  by  law  to  do  so,  and 
information  given  by  him  or  them  to  the  proper  authorities,  in  order 
that  a  new  election  may  take  place ;  but  if  the  law  is  silent  on  the 
subject,  the  electors  may  in  some  cases  proceed  of  themselves  to 
fill  the  vacancy,  where  the  nature  of  the  constituency  will  admit  of 
such  a  proceeding.  If  the  subject  is  neither  regulated  by  law,  nor 
any  power  exists  on  the  part  of  the  electors  to  proceed,  nothing  can 
be  done  to  fiU  the  vacancy  until  the  meeting  of  the  assembly.^ 

1  Post,  475,  478.  *  Selectmen  of  Sherln  rne,  Petitioners  Cash  • 

«  May,  466.  ing,  S.  &  J.,  342. 

»  Gushing,  S.  &  J.,  67,  146,  399,  422,  518. 


ClIAP.  v.]  VACANCIES.  195 

Where  the  death  of  a  member  occurs,  either  before  or  after  the 
meeting  of  the  assembly,  or  during  a  recess,  no  other  proof  of  the 
fact  is  required,  than  the  statement  of  a  member  in  his  place. 


Section  VII.     Disqualification. 

477.  Whenever  a  member  ceases  to  possess  those  qualifications, 
which  are  in  their  nature  continuing,  or  which  members  are  ex- 
pressly required  to  possess  during  their  continuance  in  office,  —  as, 
for  example,  when  a  member  removes  from  the  State  or  other  local 
constituency  in  which  he  is  required  to  continue  to  reside  whilst  in 
office,  —  the  seat  of  such  member  is  thereby  liable  to  be  adjudged 
vacant,  upon  the  fact  of  such  disquahfication  being  brought  to  the 
knowledge  of  the  assembly.  To  the  disqualifications  of  this  kind, 
may  be  added  those  which  result  from  the  commission  of  some 
crime,  which  would  render  the  member  inehgible,  or  from  some 
gross  official  or  other  misconduct,  in  consequence  of  which  he  is 
expelled,  or  discharged  from  being  a  member.  In  all  these  cases, 
unless  there  is  some  express  provision  of  law,  by  which  the  sub- 
ject is  regulated,  the  fact  of  disqualification  can  only  be  inquired 
into  and  decided  upon  by  the  assembly  itself. 


Section  VIII.     Acceptance  of   Disqualifying   or   Incompatible 

Offices. 

478.  The  distinction  has  already  been  explained  between  those 
offices  or  employments,  the  possession  of  which  at  the  time  of  the 
election  renders  a  person  ineligible,  and  those  the  functions  of 
which  are  merely  incompatible  with  tlie  functions  of  a  member ; 
the  former  avoiding  the  election ;  the  latter  only  preventing  the 
person  elected  from  exercising  the  functions  of  a  member  until  they 
are  removed.  When,  however,  a  member  has  once  been  duly 
elected  and  taken  his  seat,  this  distinction  no  longer  exists;  the 
acceptance  of  disqualifying  and  incompatible  offices  being  equally 
effectual  to  create  a  vacancy. 

479.  The  only  practical  question,  in  cases  of  this  kind,  usually 
relates  to  the  time  when  the  acceptance  of  an  office  takes  place. 
The  subject  is  sometimes  regulated  by  law,  but  where  this  is  not 
the  case,  it  may  be  considered  as  a  rule,  founded  in  the  reason  of 
the  thing,  and  corresponding  with  the  practice,  so  far  as  it  is  known, 
o-f  all  our  legislative  assemblies,  that,  in  order  to  vacate  the  seat  of 


196  LEGISLATIVE  ASSEMBLIES.  [PaRT   II. 

a  member,  by  the  acceptance  of  a  disqualifying  or  incompatible 
office,  the  election  or  appointment  thereto  alone  is  not  sufficient, 
but  the  member  must  either  have  signified  his  acceptance  of  the 
office  in  a  formal  manner,  or  have  done  what  is  incumbent  on  him 
to  qualify  himself  to  discharge  its  duties,  or  have  actually  entered 
upon  their  discharge.  In  cases  of  this  kind,  the  existence  of  the 
vacancy  must  be  declared  by  the  assembly  itself.  In  cases  arising 
under  this  and  the  preceding  section,  there  is,  in  fact,  no  vacancy, 
until  it  is  so  declared  or  implied  by  the  resolution  of  the  assembly 
itself. 


Section  IX.     Of   Vacancies  in  the   Congress   of  the  United 

States. 

480.  The  congress  of  the  United  States  being  differently  consti- 
tuted from  all  the  other  legislative  bodies  in  this  country,  a  cor- 
responding difference  wiU  be  found  to  exist  in  this  respect;  the 
senate  of  the  United  States  representing  the  people  of  the 
several  States  in  their  aggregate  or  municipal  capacity,  and  the 
house  of  representatives  representing  the  same  people  as  indi- 
viduals. Vacancies  occur  in  congress  in  the  same  manner,  and  for 
the  same  causes,  as  in  other  legislative  bodies ;  but  the  mode  of 
filhng  them,  though  in  many  respects  similar,  depends  whoUy  upon 
the  constitution  of  the  United  States. 

481.  That  instrument,  having  established  the  basis  of  the  appor- 
tionment of  representatives  among  the  several  States,  and  fixed  the 
numbers  to  wliich  the  thirteen  States  then  in  the  Union  were 
respectively  entitled,  proceeds  to  declare,  that,  "  When  vacancies 
happen  in  the  representation  from  any  State,  the  executive  author- 
ity thereof  shall  issue  writs  of  election  to  fill  such  vacancies."  This 
language,  though  broad  enough  to  include  the  senate,  apphes  only, 
it  is  clear  from  the  context,  to  vacancies  occurring  in  the  hou§e  of 
representatives.  The  constitution  also  provides,  generally,  in  refer- 
ence to  both  branches,  that  unless  otherwise  regulated  by  congress, 
(except  as  to  the  place  of  choosing  senators)  the  times,  places,  and 
manner  of  holding  elections,  shall  be  prescribed  in  each  State  by 
the  legislature  thereof. 

482.  The  language  being  that  "  when  vacancies  happen  in  the 
representation  from  any  State,"  the  executive  thereof  shall  issue 
writs  of  election  to  fill  them,  it  would  seem  to  follow,  that  where  a 
vacancy  is  of  such  a  nature  that  it  may  be  created  or  exist  inde- 
pendently of  the  house  itself,  the  executive  of  the  State  may  in  all 


Chap.  V.]  vacancies.  19? 

cases  take  official  notice  of  the  vacancy,  and  proceed  at  once  to 
take  the  proper  measures  for  filling  it ;  but  that  where  the  vacancy 
is  of  such  a  nature  that  it  cannot  exist  or  be  created  without  some 
act  ^  of  the  house  itself,  the  executive  of  a  State  cannot  proceed  to 
take  measures  to  fill  it,  until  he  receives  ofiicial  notice  from  the 
house. 

483.  I.  It  will  be  the  duty  of  the  executive  of  a  State,  therefore, 
to  take  official  notice  of  all  vacancies  which  happen  when  congress 
is  not  in  session,  and  issue  writs  to  fill  them.  A  refusal  to  accept 
belongs  to  this  class. 

484.  11.  The  executive  of  a  State  may  take  official  notice  of  a 
vacancy,  which  occurs  during  the  sitting  of  congress,  provided  it  is 
of  such  a  nature  as  not  to  require  any  agency  of  the  house  to  its 
creation  or  consummation.  Thus,  the  executive  of  the  State  to 
which  a  member  belongs  may  take  official  notice  of  his  death, 
alt  hough  congress  is  then  in  session,  and  take  measures  to  fill  the 
vacancy  occasioned  thereby.^ 

485.  III.  In  regard  to  vacancies,  which  are  not  created  or  con- 
summated, without  some  vote  or  resolution  to  that  effect,  on  the 
part  of  the  house,  although  the  act  or  event,  from  which  they  result, 
happened  when  congress  was  not  in  session,  such  vacancies  can- 
not be  filled,  until  official  notice  is  given  by  the  house  to  the 
executive  of  the  State.  Vacancies  of  this  description  are  those 
which  result  from  a  refusal  to  qualify,  expulsion,  adjudication  of  a 
controverted  election  or  return,  disqualification,  or  acceptance  of  a 
disqualifying  office. 

486.  IV.  Ordinarily,  when  a  legislative  assembly  is  not  in  ses- 
sion, there  is  no  power  in  being  to  which  a  member  of  such  a  body 
can  resign  his  office ;  but  in  consequence  of  the  constitutional  pro- 
vision above  mentioned,  respecting  the  filling  of  vacancies,  it  was 
very  early  decided  '^  that  the  executive  of  a  State,  in  the  recess  of 
congress,  might  receive  the  resignation  of  a  member,  and  issue  a 
writ  of  election  to  fill  the  vacancy. 

487.  V.  It  seems  also  to  have  been  decided,^  that  the  executive 
of  a  State  might  receive  the  resignation  of  a  member  of  congress 
while  that  body  was  in  session,  and  issue  a  writ  of  election  to  fiU 
the  vacancy.  But  inasmuch  as  every  legislative  body  has  a  control 
over  its  own  members,  so  far  as  to  be  competent  to  prevent  them 

1  There  need  not  be  any  other  vote  declar-  '  Cnse  of  John  F.  ^fercer,  Ch\rke  &  Hull,  44; 

ing  a  vacancy  than  the  official  notice  of  its  Case  of  John  Hoye,  Same,  136. 

3xi?tence.  ■•  Case  of  Benjamin  Edwards.  CHrke  &  Hall, 

»  Coug.  Globe,  XVn.  339.  92. 

17* 


198  LEGISLATIVE  ASSEMBLIES.  [PaRT   IL 

from  divesting  themselves  of  membership  at  pleasure,  it  may  weU 
be  doubted,  whether  a  member  can  resign  his  office,  when  congress 
is  in  session,  to  any  other  authority  than  the  body  of  which  he  is  a 
mem-ber.  The  most  common  course  of  proceeding,  when  a  mem- 
ber wishes  to  resign,  whUe  congress  is  in  session,  is,  for  him  to 
address  a  letter  to  the  house,  resigning  his  office,  and,  at  the  same 
time  another  letter  to  the  governor  of  his  State,  to  inform  the  latter 
that  he  has  done  so.  The  executive  of  the  State,  thereupon,  first 
waiting  a  reasonable  time  for  the  resignation  to  be  accepted  or 
refused,  or,  most  commonly,  perhaps,  assuming  that  it  will  be 
accepted,  proceeds,  at  once,  to  take  measures  to  fill  the  vacancy. 

488.  If  the  legislature  of  a  State  fails  to  prescribe  "  the  times, 
places,  and  manner  of  holding  elections  "  for  the  choice  of  repre- 
sentatives in  congress,  as  required  by  the  constitution,  the  executive 
of  the  State,  in  his  writ  of  election,  to  fill  a  vacancy,  may  fix  upon 
the  time  and  place  for  holding  the  election.^ 

489.  The  constitution  of  the  United  States  declares,  that  the 
senate  shall  be  composed  of  two  senators  from  each  State,  chosen 
by  the  legislature  thereof,  for  six  years,  and  divided  into  three 
classes,  so  that  one  thnd  may  be  chosen  every  second  year.  It 
then  proceeds  to  say:  — "  and  if  vacancies  happen,  by  resignation 
or  otherwise,  during  the  recess  of  the  legislature  of  any  State,  the 
executive  thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature,  which  shaU  then  fill  such  vacancies." 

490.  When  the  senate  first  assembled  and  organized,  under  the 
constitution,  the  senators  present  from  the  States  which  then  con- 
stituted the  Union  were  classed  accordingly ;  and  as  new  States 
have  since  been  formed  and  admitted  into  the  Union,  their  senators 
have  been  assigned  by  lot  to  two  out  of  the  three  classes  into  which 
the  senate  is  divided.  The  consequence  is,  that  the  senators  of 
each  State  are  to  be  elected  therein,  by  the  legislatures  of  the  same, 
respectively,  at  regular  periods  recurring  after  intervals  of  six  years 
from  the  expiration  of  their  first  senatorial  terms  of  office.  Vacan- 
cies, therefore,  occurring  by  the  mere  lapse  of  time,  are  ■  known 
beforehand,  and  may  be  provided  for  by  the  legislative  bodies 
whose  duty  it  is  to  fiU  them.  They  do  not  faU,  properly,  under  the 
head  of  vacancies,  but  rather  constitute  the  regular  elections  of  the 
senate.  These  elections,  by  custom,  are  to  be  made  by  the  legisla- 
ture, which  sits  next  preceding  the  expiration  of  the  regular  term  of 
oflfice  of  a  senator,  and  for  the  term  of  six  years.     There  is  nothing 

1  Case  of  John  Hoge,  Clarke  &  Hall,  135. 


Chap.  V.]  vacancies.  199 

in  the  constitution  to  prevent  the  legislature  of  a  State  frora 
anticipating  the  election  of  a  senator  ;  but  where  an  election  of  this 
kind  is  to  be  made  by  tlie  legislature,  it  appears  to  devolve,  as  a 
matter  of  course,  upon  that  which  immediately  precedes  the  occur- 
rence of  a  vacancy. 

491.  The  vacancies  in  the  senate  of  the  United  States,  which 
are  mentioned  in  the  extract  above  quoted  from  the  constitution, 
are  not  those  which  take  place  at  regular  intervals,  but  those  which 
occur  occasionally  and  irregularly,  and  which  correspond,  therefore, 
as  to  the  causes  from  which  they  arise,  and  are  subject  to  the  same 
observations,  with  those  which  occur  in  the  other  branch.  Vacan- 
cies in  the  senate  are  communicated  to,  or  taken  official  notice  of 
by,  the  executive  of  the  State,  as  the  head  of  the  government,  and 
not  as  in  reference  to  vacancies  occurring  in  the  other  branch  in 
virtue  of  any  constitutional  provision.  This  subject  requires  to  be 
noticed  with  relation  to  three  particulars,  namely :  —  First,  The 
kind  of  vacancy ;  second.  The  appointing  power ;  and,  thu-d.  The 
duration  of  the  appointment. 

492.  I.  The  vacancies  alluded  to  are  those  which  take  place 
occasionally  and  irregularly,  and  which  cannot  therefore  be  fore- 
seen ;  such,  for  example,  as  those  which  are  occasioned  by  death, 
resignation,  acceptance  of  an  incompatible  office,  disquaUtication, 
or  any  cause  other  than  mere  lapse  of  time.  Vacancies  of  this 
description  are  filled  only  for  the  remainder  of  the  unexpired  term. 

493.  II.  K  the  legislature  of  a  State  is  in  session,  when  a 
vacancy  occurs  in  the  office  of  senator  from  such  State  in  the 
senate  of  the  United  States,  the  vacancy  is  to  be  filled  thereby,  in 
the  same  manner  as  the  original  appointment  was  made,  for  the 
residue  of  the  unexpired  term.  K  the  legislature  is  not  in  session, 
the  vacancy  is  to  be  filled  temporarily,  until  the  meeting  of  the 
legislature,  by  the  executive  of  the  State. 

494.  III.  If  the  vacancy  is  filled  by  the  legislature,  the  appoint- 
ment is  made,  in  all  cases,  for  the  unexpired  term,  if  by  the 
executive,  it  is  declared  to  be  temporary  only,  "  until  the  next 
meeting  of  the  legislature,"  which  shall  then  fill  such  vacancy.  In 
the  construction  of  this  provision  the  following  points  have  been 
held.  First,  if  the  legislature,  which  next  meets  after  the  occurrence 
of  a  vacancy,  whether  a  temporary  appointment  has  been  made  or 
not,  fails  to  make  an  election,  and  adjourns  without  filling  the 
vacancy,  the  power  of  the  executive  to  make  a  temporary  appoint- 
ment is  at  an  end.     Second,  by  the  terms  "  next  meeting  of  the 


200  LEGISLATIVE   ASSEMBLIES.  [PaRT    11. 

legislature,"  is  not  meant  the  first  or  any  intermediate  day  of  the 
session ;  these  terms  include  the  whole  period  of  the  session  until 
its  close,  during  which  the  vacancy  may  be  filled,  and,  if  not  sooner 
superseded  by  an  election,  a  temporary  appointment  wiU  last  to 
that  time.  Thkd,  if  an  executive  appointment  is  superseded  by  a 
legislative  election,  the  latter  takes  effect  and  vacates  the  former, 
when  the  acceptance  of  the  latter  is  officially  made  known  to,  or 
may  be  presmned  by  the  senate. 


CHAPTER    SIXTH. 

or  THE  SESSION,  ADJOURNMENT,  PROROGATION,  ASSEMBLING  BY 
PROCLAMATION,  AND  DISSOLUTION  OF  A  LEGISLATIVE  ASSEM- 
BLY. 


Section  I.     Session. 

495.  The  term  of  time  for  which  a  legislative  assembly  is  elected, 
and  during  which  it  is  competent  to  sit,  is  usually  broken  into  shorter 
periods,  dming  which  it  actually  sits,  which  are  called  sessions, 
and  which  are  usually  (especially  the  first  time  an  assembly  meets) 
appointed  by  law.  A  session  is  the  period  of  time,  during  which 
both  the  branches  of  the  legislature  sit  from  day  to  day,  with  occa- 
sional intermissions  of  a  day  or  two  at  a  time,  by  one  or  both,  until 
the  business  before  them  is  completed,  and  the  daily  sittings  are 
brought  to  a  close.  This  takes  place  either  by  lapse  of  time,  or  by 
means  of  what  is  called  a  prorogation,  or  dissolution.  In  this 
country,  a  session  of  a  legislative  assembly  most  commonly  termi- 
nates by  an  adjournment  withoiit  day  mutually  agreed  upon. 
The  term  adjournment,  which,  in  strictness,  denotes  only  a  continu- 
ation of  the  session,  is  used  with  us  to  denote  its  conclusion.  The 
reason  for  this  use  of  the  term  undoubtedly  is,  that  an  adjourn- 
ment always  takes  place  by  the  authority  of  the  legislative  body 
itself;  and,  in  this  country,  the  executive  has  no  authority,  in  any 
case,  or,  at  least,  without  its  consent,  to  put  an  end  to  the  session 
of  a  legislative  assembly. 


Chap.  VI.J  session.  201 

496.  The  meriibers  of  a  legislative  assembly,  before  its  first  meet- 
ing, as  well  as  during  the  intervals  of  its  sitting,  have,  as  we  shall 
see  hereafter,  some  necessary  privileges  as  such;  but  (he  assembly 
itself  has  no  authority,  and  can  exercise  none,  except  during  a  ses- 
sion, and  v^hile  the  assembly  is  duly  organized  for  ihe  transaction 
of  business.  So  its  authority  terminates  with  the  session.  Its 
ollicers,  as  we  have  seen,  are  elected,  unless  it  is  otherwise  declared, 
for  the  whole  terra  of  the  legal  existence  of  the  assembly  itself; 
but  unless  otherwise  extended,  all  its  orders,  resolutions,  and  pro- 
ceedings, which  are  of  a  continuous  nature,  necessarily  expire,  with 
its  own  authority,  at  the  end  of  the  session.  They  may  be  made 
to  extend  to  and  be  in  force  in,  the  next  session  of  the  same  body, 
but  they  cannot  be  extended,  unless  they  have  taken  the  form  of 
laws,  beyond  the  period  of  its  legal  existence.  Ordinarily,  there- 
fore, to  be  in  force  in  the  next  session,  they  must  be  revived  for  that 
purpose ;  and  to  be  in  force  in  a  succeeding  assembly,  they  must 
be  renewed  in  it  as  original  measures. 

497.  In  parUament,  it  is  customary  for  both  branches,  at  the 
commencement  of  each  session,  to  agree  to  or  adopt  certain  orders, 
which  have  been  found  necessary  in  the  transaction  of  business, 
and  which  last  during  the  session  only.  These  orders  are  very 
nearly  or  quite  the  same  from  one  session  to  another.  The  ses- 
sional orders,  which  are  some  of  them  merely  in  affirmance  of 
the  common  parliamentary  law,  have  but  very  Uttle  to  do  with  the 
ordinary  proceedings  of  the  house ;  which  are  governed  and  regu- 
lated, for  the  most  part,  by  a  system  of  procedure,  which  constitutes 
the  law  of  the  house,  without  any  previous  adoption  or  sanction 
by  the  house  itself.  This  system  consists,  in  part,  of  customs  and 
usages,  which  have  been  handed  down,  in  the  practice  of  boih 
houses,  from  time  immemorial,  and,  in  part,  of  positive  regulations, 
which  have  been  made,  from  time  to  time,  by  the  two  houses, 
respectively,  and  declared  to  be  standing  orders,  and  ^^-hich  conse- 
quently are  binding  upon  every  succeeding  house,  by  the  law  and 
custom  of  parliament,  until  they  are  vacated  or  rescinded.  The 
consequence  is,  that  each  house  of  parliament,  as  soon  as  it 
assembles,  is  provided  with  a  code  of  rules  for  the  government  and 
regulation  of  its  proceedings. 

498.  But  in  this  country,  every  one  of  the  constitutions  contains 
a  provision,  that  each  legislative  assembly  thereby  established  may 
determine  the  rules  of  its  proceeding.  Hence,  probably,  in  con- 
sequence of  this  constitutional  principle,  the  system  of  standing 
orders  has  never  been  estabhshed  in  this  country ;  and  no  legislative 


202  LEGISLATIVE    ASSEMBLIES.  [PaRT    IL 

assembly  is  here  governed,  or  its  proceedings  regulated,  by  any 
other  rules  and  orders  than  those  to  which  it  gives  its  own  consent. 
One  of  the  proceedings,  therefore,  which  takes  place  at  the  com- 
mencement of  the  first  session  of  legislative  bodies  in  this  country, 
is  the  adoption  of  rules  and  orders  for  the  regulation  of  its  proceed- 
ings ;  and  as  this  adoption  of  rules  would  expire  with  the  session, 
unless  otherwdse  specified,  it  would  require  to  be  renewed  at  the 
commencement  of  each  succeeding  session. 

499.  Every  parliament  is  commonly  designated  by  the  name  and 
year  of  the  reign  of  the  sovereign,  by  whose  authority  it  is  held ; 
and  the  several  sessions,  if  more  than  one,  into  which  it  is  divided, 
by  prorogations,  and  in  which  it  does  business,  are  designated  as 
the  first,  second,  etc.,  of  such  a  parliament.  Thus  the  parHament, 
which  first  assembled  for  the  despatch  of  business,  on  the  22d  of 
January,  1801,  is  known  as  The  First  Parliament  of  the  United 
Kingdom  of  Great  Britain  and  Ireland.  But  this  designation  is 
merely  conventional ;  an  act  of  parliament  can  only  be  legally  de- 
scribed by  reference  to  the  name  and  year  of  the  sovereign,  in 
whose  reign  it  is  enacted. 

500.  The  legislative  department  of  the  federal  government  is 
called  the  congress  of  the  United  States ;  in  the  States  of  Maine, 
Michigan,  Wisconsin,  California,  New  York,  Texas,  and  Missis- 
sippi, it  is  styled  the  legislature  ;  in  Massachusetts  and  New  Hamp- 
shire, the  general  court ;  and,  in  all  the  other  States,  the  general 
assembly.  In  the  States  of  Maine,  Massachusetts,  Vermont,  Rhode 
Island,  Connecticut,  New  York,  Georgia,  the  legislative  term  for 
members  of  both  branches  is  one  year ;  in  the  States  of  Florida, 
Wisconsin,  and  California,  it  is  one  year  for  members  of  the  second 
branch,  and  two  years  for  those  of  the  other ;  in  those  of  New  Jer- 
sey, Pennsylvania,  and  Alabama,  it  is  one  year  for  members  oif  the 
second  branch,  and  three  years  for  those  of  the  other ;  in  those  of 
North  Carolina,  Tennessee,  OMo,  Illinois,  and  Michigan,  it  is  two 
years,  for  members  of  both  branches  ;  and  in  the  States  of  Delaware, 
Maryland,  Virginia,  South  Carolina,  Mississippi,  Louisiana,  Ken- 
tucky, Indiana,  Illinois,  JViissouri,  Arkansas,  Texas,  and  Iowa,  it  is 
two  years  for  the  second  branch,  and  four  years  for  members  of  the 
other.  In  the  following  States  the  regular  meeting  of  the  legisla- 
ture is  appointed  to  take  place  biennially,  namely :  —  Dela\A^are, 
Maryland,  Virginia,  North  Carolina,  Mississippi,  Kentucky,  Ohio, 
Indiana,  Illinois,  Michigan,  Missouri,  Arkansas,  Texas,  and  Iowa; 
in  all  the  other  States  it  is  annual ;  and  in  Rhode  Island  the  legis- 
lature is  appointed  to  meet  regularly  twice  a  year.     Representatives 


Chap.  VI.]  session.  203 

in  the  congress  of  the  United  States,  are  also  elected  for  two  years 
senators  for  six  years ;  and  the  session  of  congress  is  annual. 

501.  In  the  congress  of  the  United  States,  and  in  the  legislatures 
of  several  of  the  States,  the  members  of  the  first  branch  are  chosen 
for  longer  periods  than  those  of  the  other,  and  are  divided  into  two 
or  more  classes,  the  official  term  of  one  of  which  expires  at  the  same 
time  with  that  of  the  second  branch.  The  members  of  the  senate 
of  the  United  States  are  chosen  for  six  years,  and  are  divided  into 
three  classes,  one  of  which  goes  out  of  office  and  is  renewed  every 
two  years;  the  members  of  the  senate  in  the  States  of  Florida, 
Wisconsin,  and  California,  are  chosen  for  two  years,  and  divided 
into  two  classes,  one  of  which  goes  out  of  office  and  is  renewed 
every  year ;  in  the  States  of  New  Jersey,  Pennsylvania,  and  Ala- 
bama, the  members  of  the  senate  are  chosen  for  three  years,  and 
divided  into  three  classes,  one  of  which  goes  out  of  office  and  is 
renewed  every  year;  in  the  States  of  Maryland,  Virginia,  South 
Carolina,  Louisiana,  JVIississippi,  Kentucky,  Indiana,  Illinois,  Iowa, 
Texas,  and  Missouri,  the  members  of  the  senate  are  chosen  for 
four  years  each  and  are  divided  into  two  classes,  one  of  which  goes 
out  of  office  every  two  years.  In  Delaware  and  Arkansas,  the 
members  of  the  senate  are  chosen  for  four  years,  but  are  not  divided 
into  classes ;  so  that  in  these  States,  the  legislative  term  of  mem- 
bers of  the  senate  is  double  that  of  the  members  of  the  other  branch. 
In  all  these  cases,  as  both  branches  are  necessary  to  constitute  a 
legislature,  the  period  of  the  duration  of  that  department  of  the 
government  is  necessarily  determined  by  the  official  term  of  the 
second  branch,  though  the  members  of  the  first  are  chosen  for  longer 
periods,  that  is,  for  two  or  more  successive  legislatures. 

502.  Each  successive  legislature  either  receives  its  designation 
from  the  year  or  years  for  which  it  is  held,  or  according  to  its  num- 
ber commencing  with  the  organization  of  the  government  of  wliich 
it  is  a  part ;  thus,  the  successive  congresses  of  the  United  States 
are  known  as  the  first,  second,  etc. ;  and  the  successive  legislatvu-es 
of  the  several  States  as  the  fijst,  second,  etc.,  general  assembly,  or 
as  the  legislature  or  general  court  of  such  a  State  for  such  a  year. 
The  sessions  held  by  each,  if  more  than  one,  are  numbered  con- 
secutively and  designated  by  their  numbers. 

503.  In  order  to  determine  what  kind  of  a  meeting  of  a  legisla- 
tive assembly  in  this  country  will  constitute  a  session,  it  seems 
necessary  to  consider  its  commencement,  its  proceedings,  and  its 
termination.  In  regard  to  its  commencement,  there  can  be  no  doubt, 
when  an  assembly  comes  together,  at  the  time  required  by  law  for 


204  LEGISLATIVE   ASSEMBLIES.  [PaKT   II. 

the  commencement  of  the  regular  session ;  or  in  pursuance  of  an 
executive  proclamation,  for  an  extraordinary  session ;  or  in  pursu- 
ance of  an  adjournment  by  both  branches,  for  the  purpose  of  closing 
one  session  and  commencing  another ;  that  in  all  these  cases,  there 
is  the  commencement  of  a  session.     As  to  the  proceedings,  it  was 
formerly  held  in  England,  that,  in  order  to  constitute  a  session  of 
parliament,  it  was  necessary  either  that  some  judgment  should  be 
given,  by  the  house  of  lords  as  a  court  of  law,  or  that  a  bill  should 
be  passed  by  both  houses,  and  receive  the  royal  assent ;  and  that 
otherwise  the  meeting  would  be  only  a  convention  and  not  a  ses- 
sion^    Such  proceedings,  however,  do  not  now  seem  to  be  requisite ; 
but  if  parUament  assembles  and  sits,  and  may  proceed  with  busi- 
ness, though  it  does  not  in  fact  transact  any,  the  proceedings  will 
suffice  for  a  session.     The  termination  of  the  meeting  gives  rise  to 
some  question.     The  only  termination  of  the  sitting  of  parliament, 
which  will  constitute  a  session,  is  undoubtedly  a  prorogation,  or  a 
dissolution  either  by  royal  authority,  or  by  lapse  of  time  ;  no  mere 
adjournment,  even  in  obedience  to  the  king's  command,  being  suffi- 
cient for  the  purpose.     When  a  prorogation  takes  place,  it  is  im- 
material for  how  long  or  short  a  time  it  may  be ;  a  prorogation  for 
a  single  day  being  as  effectual  as  one  for  a  longer  period,  to  make 
the  meeting  so  terminated  a  session.     In  our  legislative  assemblies, 
a  prorogation  where  that  mode  of  proceeding  is  in  use,  or  a  disso- 
lution by  lapse  of  time,  \^dll  have  the  same  effect  to  constitute  a 
session  as  in  England.     But  there  are  many,  indeed  the  greater  part, 
of  the  States,  in  which  prorogation  is  not  a  constitutional  proceed- 
ing, but,  in  which,  every  termination  of  the  sitting  of  the  legislative 
bodies  is  denominated  an  adjournment.     In  all  these  States,  there 
can  be  no  doubt,  that  an  adjournment  without  day  will  be  a  suffi- 
cient termination  of  the  session  ;  but,  whether  an  adjournment  from 
one  day  to  another,  however  distant,  will  constitute  a  session,  may, 
perhaps,  be  doubtful.     According  to  the  law  of  parliament,  it  would 
not;  and  the  same  rule  may  be  admitted  here,  unless  the  adjourn- 
ment is  accompanied  wdth  a  declaration,  that  it  is  for  the  purpose 
of  closing  the  session,  or  is  attended  with  circumstances  of  equiva- 
lent character  ;  in  which  case,  the  session  would  doubtless  be  con- 
sidered as  terminated. 

504. .  The  congress  of  the  United  States  furnishes  a  good  example 
of  both  modes,  in  which  the  session  of  a  legislative  assembly  in  this 
country  terminates,  usually  by  lapse  of  time,  or  by  mutual  agree- 
ment to  adjourn.  The  members  of  the  second  branch  being  pre- 
viously chosen,  in  every  alternate  year,  hold  their  offices  for  two 


Chap.  VI.]  session.  205 

years  from  the  fourth  of  March  thence  next  ensuing ;  and  congress 
is  required,  by  the  constitution,  to  meet  every  year  on  the  first 
Monday  of  December,  unless  a  different  day  is  appointed  by  law. 
Each  congress,  therefore,  usually  has  two  sessions,  commencing  on 
the  first  Monday  of  December  annually.  The  first  session  termi- 
nates by  agreement  of  the  two  branches;  the  second  by  lapse  of 
time. 

505.  When  the  session  of  congress  terminates,  with  the  functions 
of  its  members,  on  the  day  preceding  the  fourth  of  March,  it  seems 
to  have  been  held,  that  the  sitting  of  that  day  might  be  prolonged, 
at  pleasure,  beyond  the  natural  day,  without  losing  its  appropriate 
designation  of  a  sitting  on  that  day,  and  be,  therefore,  within  the  offi- 
cial term  of  the  members,  provided  it  should  not  be  extended  beyond 
twelve  o'clock  at  noon,^  on  the  fourth  of  March,  at  which  time  the 
functions  of  the  members,  and  of  course  the  legal  existence  of  con- 
gi'ess,  would  terminate. 

506.  When  a  session  of  congress  terminates  by  mutual  agree- 
ment, the  day  being  agreed  upon  beforehand,  by  a  joint  resolution, 
when  that  day  arrives,  and  the  two  branches  have  done  what  busi- 
ness they  intend  doing,  they  unite  in  a  message  to  the  president,  to 
inform  him,  that,  unless  he  has  some  further  communication  to 
make  to  them,  they  propose  to  bring  the  session  to  a  close.  The 
president  returning  for  answer  that  he  has  no  further  communica- 
tion to  make  to  them,  the  two  branches,  first  giving  each  other  no- 
tice, then  adjourn  without  day,  on  motion.  If  the  two  houses  have 
come  to  a  previous  resolution,  that  they  shall  be  adjourned  by  their 
respective  presiding  officers  at  a  particular  point  of  time,  on  the  day 
fixed,  for  the  adjournment,  when  that  time  arrives,  the  business  on 
hand,  whatever  it  may  be,  is  then  arrested,  and  the  house  declared 
to  be  adjourned  without  day. 

507.  The  sitting  of  a  legislative  assembly,  from  day  to  day, 
begun  on  the  day  fixed  by  law,  whether  a  quorum  assembles,  or  the 
assembly  is  organized  on  that  day,  or  not,  and  brought  to  a  close 
by  lapse  of  time,  or  by  mutual  agreement,  constitutes  a  session  for 
all  legal  or  parfiamentary  purposes. 

508.  During  the  session  of  a  legislative  assembly,  the  person  or 
persons  exercising  the  executive  authority  should  be  of  convenient 
access  to  either  branch ;  as  in  Massachusetts,  where  the  executive 
authority  is  in  the  governor  and  council,  who  are  ah\^ays  sitting,  in 
the  State  House,  while  the  legislature  is  in  session ;  and  this  con- 

1  Cong.  Globe,  XXIH.  78T. 
18 


206  LEGISLATIVE   ASSEMBLIES.  [PaRT    11. 

venient  access  to  the  executive  has  been  considered  so  important  in 
some  of  the  States,  as  to  be  expressly  provided  for  in  their  constitu- 
tions. 


Section  II.     ADJOunisrMENT. 

509.  A  legislative  assembly,  having  once  met,  on  the  day  ap- 
pointed for  its  assembling,  continues  to  meet  every  day,  as  a  matter 
of  course,  except  on  Sundays  and  such  other  days  (Christmas  and 
Good- Friday,  for  example)  as  are  not  considered  legislative  days, 
until  it  is  prorogued,  or  otherwise  adjourned,  or  dissolved  by  lapse 
of  time!  By  special  order,  however,  the  assembly  may  sit  on  Sun- 
days and  other  non-legislative  days.  "  The  parUament,"  says 
Whitelocke,^  "  is  so  constant  in  their  daily  sitting,  that  every  time 
when  the  house  of  commons  riseth,  the  speaker  pronounceth,  that 
the  house  adjourns  until  the  next  morning;  and  so  on  Saturdays 
the  house  adjourns  itself  until  Monday.  The  word  adjourn  is  from 
the  French  word  jour  ;  and  to  adjourn  is  to  put  off  from  one  day 
to  another." 

510.  When  therefore  a  legislative  assembly  simply  adjourns,  or 
rises,  without  any  previous  order  or  resolution  on  the  subject,  its  sit- 
ting is  to  be  resumed  on  the  next  legislative  day,  whenever  a  quo- 
rum is  assembled  in  the,  usual  place  of  sitting.  It  is  the  practice, 
however,  in  this  country,  to  fix  a  time  for  the  assembling  on  each 
day,  by  a  standing  order ;  so  that  when  an  adjournment  takes  place, 
wdthout  any  previous  resolution  or  special  order,  on  the  subject,  the 
sitting  is  resumed  at  that  hour  on  the  next  day. 

511.  A  legislative  assembly  may  also  adjourn  to  a  day  beyond 
the  next  regular  sitting  day ;  but,  in  order  to  prevent  the  incoriven- 
ience  and  delay,  which  would  result  from  the  adjournment  of  one 
branch  for  a  considerable  period,  without  the  consent  and  knowl- 
edge of  the  other,  it  is  provided  in  nearly  all  our  constitutions,  that 
neither  branch  shall  adjourn  for  more  than  a  certain  number  of 
days,  as,  for  example,  two  or  three,  without  the  consent  of  the  other. 
The  days  intended  by  this  prohibition  must  of  course  be  days  on 
which  the  other  branch  might  sit,  that  is,  legislative  days,  and  others 
which  might  be  made  so  ;  and,'  therefore,  an  adjournment  from  Fri- 
day to  the  next  Tuesday  would  be  for  three  days ;  Sunday,  though 
not  an  ordinary  sitting  day,  being  one  on  which  either  branch  may 
sit  and  transact  business,  if  it  should  think  proper. 

512.  For  the  reasons  given  in  the  preceding  paragraph,  it  is  also 
provided  in  many  of  the  constitutions  that  neither  branch,  without 

1  Whitelocke,  I.  219. 


Chap.  VI.]  prorogation.  207 

the  consent  of  the  other,  shall  adjourn  to  any  other  place  than  that 
in  which  the  two  branches  shall  then  be  sitting. 

513.  The  prohibitions  above  mentioned  are  restrictions  upon  the 
proceeding  of  one  branch  independently,  and  without  the  consent 
of  the  other ;  if  the  two  branches  agree  upon  the  time  and  place, 
they  may  adjourn  for  any  number  of  days,  and  to  any  place,  that 
they  may  think  proper  or  convenient. 

514.  An  adjournment,  being  in  strictness  of  language  nothing 
more  than  a  continuation  of  one  branch  of  the  assembly  from  daj 
to  day,  by  its  own  act,  either  independently  of,  or  in  concurrence 
with,  a  similar  act  of  the  other  branch,  the  parUamentary  effect  of  it, 
as  regards  the  business  introduced  and  pending  at  the  time  it  takes 
place,  is,  that  every  proceeding  remains  entire,  and,  at  the  meeting 
after  the  recess,  may  be  taken  up  in  the  state,  and  at  the  period,  or 
stage,  in  which  it  was  left.^ 

515.  A  temporary  suspension  of  business  sometimes  takes  place 
in  the  course  of  the  daily  sitting,  without  an  adjournment ;  which 
may  either  occur  by  the  general  consent  and  acquiescence  of  the 
assembly,  or  by  motion  and  vote  for  the  purpose.  In  the  latter  case, 
the  suspension  is  usually  denominated  a  recess.  When  the  time 
for  which  it  was  taken  has  expired,  the  business  of  the  day  is  to  be 
resumed  precisely  where  it  was  suspended.  A  motion  for  a  recess 
has  nothing  of  the  peculiar  character,  which  belongs  to  the  motion 
to  adjourn,  or  is  sometimes  given  to  the  latter  in  our  legislative 
assemblies.^ 


Section  III.    Prorogation. 

516.  When  the  business  of  a  legislative  body  is  completed,  but 
the  time  for  its  dissolution  has  not  arrived,  and  the  sittings  of  both 
branches  are  suspended,  by  a  joint  act,  to  be  resumed  at  a  future 
time,  this  suspension  is  properly  denominated  a  prorogation.  In 
England,  a  prorogation  can  only  take  place  by  the  authority  of  the 
king ;  in  this  country,  with  certain  exceptions  and  limitations,  only 
by  the  act  either  concurrent  or  joint,  of  the  two  branches  of  the 
legislature.  All  the  constitutions,  though  they  differ  as  to  the  mode, 
concur  in  withdraw^ing  from  the  executive  department  the  power  to 
terminate  at  pleasure  the  existence  of  the  legislative.     The  lan- 

1  Hatsell,  n.  337.  The  eflfect  of  an  adjourn-  «  J.  of  H.  29th  Cong.  1st  Sess.  857;  J.  of  H 
ment,  to  supersede  a  motion,  will  be  noticed  29th  Cong.  2nd  Sess.  343 ;  J.  of  H.  32nd  Cong 
hereafter.  2ud  Sess.  389;  Cong.  Globe,  VIII.  361. 


208  LEGISLATIVE   ASSEMBLIES.  [PaRI    II. 

guage,  frequently  made  use  of  to  express  this  idea,  is,  that  "  Each 
house  shall  sit  upon  its  own  adjournment." 

517.  In  Massachusetts  alone,  is  the  form  of  a  prorogation  still 
preserved.  By  the  constitution  of  that  State,  it  is  made  the  duty 
of  the  governor,  with  the  advice  and  consent  of  the  council,  to 
prorogue  the  general  court,  when  in  session,  to  any  tune  the  two 
houses  shall  desire.  It  also  further  provides,  that  during  the  recess, 
the  governor  may  prorogue  it  from  time  to  time,  not  exceeding 
ninety  days  at  any  one  time.  This  last  provision  is  the  only  rem- 
nant left  in  the  United  States,  of  the  absolute  control  of  the  execu- 
tive over  the  legislative  department.  In  this  State,  also,  the  gov- 
ernor is  authorized,  in  case  of  a  disagreement  between  the  two 
houses,  as  to  the  necessity,  expediency,  or  time  of  adjournment,  or 
prorogation,  to  adjourn  or  prorogue  them,  at  his  pleasure,  not  ex- 
ceeding ninety  days  at  any  one  time. 

518.  In  aU  the  other  legislatures,  with  the  exception  of  that  of 
North  Carolina,  a  prorogation  takes  place  by  the  concurrent  act  of 
the  two  branches,  without  any  interference  on  the  part  of  the  execu- 
tive, unless  the  two  branches  disagree ;  in  which  case  the  governor 
or  president,  except  in  the  States  of  Virginia,  New  York,  Tennessee, 
New  Jersey,  Maryland,  Indiana,  Michigan,  Wisconsin,  California, 
and  Missouri,  is  authorized  to  adjourn  or  prorogue  them  to  such 
time  as  he  may  think  proper,  not  exceeding  the  period  mentioned 
in  each  particular  constitution,  nor,  of  course,  beyond  the  period  at 
which  the  functions  of  the  legislative  body  expire.  In  North  Caro- 
lina, the  two  branches  prorogue  themselves  to  such  future  day  and 
place  as  they  may  think  proper,  by  joint  ballot. 

519.  A  prorogation,  as  already  remarked,  is  the  termination  for 
the  time  being,  of  the  functions  of  the  legislative  body,  as  an  ad- 
journment is  a  continuation  from  day  to  day,  of  the  functions  of 
each  of  its  branches.  In  whichever  of  the  ways  above  mentioned, 
this  termination  in  fact  takes  place,  or  by  whatever  name  it  may 
be  called,  the  legal  effect  of  it  is  to  conclude  the  session ;  by  which 
all  bills  and  other  proceedings  of  a  legislative  character,^  depending 
in  either  branch,  in  whatever  state  they  are  at  the  time,  are  entirely 
put  an  end  to,  and  must  be  instituted  again,  in  the  next  session 

1  In  England  the  house  of  lords  is  a  court  The  officers  of  the  assembly  being  chosen 

of  errors  in  the  last  resort,  which  is  the  case  for  the  term  of  office  of  the  members,  it  is 

also  with  the  senatorial  branch  in  some  of  the  scarcely  necessary  to  add,  that  the  organiza- 

States.     Where  this   is  the  character  of  a  tion  of  the  assembly  remains  notwithstanding 

legislative  body,  judiciary  cases   depending  any  prorogation. 
therein  are  not  affected   by  a  prorogation. 
The  same  is  true  in  regard  to  impeachments. 


Chap.  VI.]  assembling  by  proclamation.  209 

precisely  as  if  they  had  never  been  begun.^  This  rule  applies  to 
every  proceeding  instituted  by,  or  depending  for  its  existence  upon, 
any  order  of  the  assembly. 


Section  IV.     Assembling  by  Proclamation. 

520.  There  are  tv^'^o  kinds  of  contingencies  mentioned  in  the 
several  constitutions,  on  the  occasion  of  which  it  is  made  the  duty 
of  the  executive  to  intervene  in  the  calling  of  a  meeting  of  the 
legislature  ;  and  wherever  this  power*  is  exercised,  it  is  of  course  to 
be  effected  by  means  of  an  official  proclamation,  issued  and  pro- 
mulgated in  the  usual  manner,  by  the  executive  authority.  The 
occasions,  on  which  this  interference  takes  place  are,  first,  to  con- 
vene the  legislature  on  extraordinary  occasions,  and  second,  to 
change  the  place  of  meeting. 

521.  The  ordinaiy  business  of  a  legislature  does  not  require  it  to 
sit  uninterruptedly,  but  only  to  hold  one  or  more  regular  sessions, 
during  the  period  for  which  it  is  elected;  but,  as  extraordinary 
occasions  may  occur,  on  which  it  is  absolutely  necessary,  or,  at  any 
rate,  extremely  convenient,  that  the  legislature  should  act,  or  advise, 
it  is  provided,  in  all  the  constitutions,  except  those  of  New  Hamp- 
shire, North  Carolina,  and  Indiana,  that  the  legislature  may  be 
convened,  on  extraordinary  occasions,  by  the  executive  authority. 
The  constitutions  of  the  States  last  named  are  silent  on  this  sub- 
ject ;  that  of  North  Carolina,  however,  declares  that  the  governor 
may  exercise  all  the  executive  powers  of  government,  limited 
and  restrained  by  the  constitution  and  laws ;  and,  by  that  of  Vir- 
ginia, the  governor  is  required  to  convene  the  legislature,  not  only 
when  "  in  his  opinion  the  interest  of  the  commonwealth  may  re- 
quire it,"  but  also,  "  on  application  of  a  majority  of  the  members 
of  both  houses." 

522.  The  executive,  on  the  assembling  of  the  legislature  by  proc- 
lamation, would,  of  course,  state  to  them  the  causes  for  which  they 
were  convened.  In  Tennessee,  Illinois,  and  Iowa,  he  is  required  to 
do  so  by  constitution ;  and  in  the  t^vo  former  the  legislature  is 
expressly  prohibited  from  entering  upon  any  other  business  than 
that  for  which  it  is  thus  specially  convened.  If  it  were  not  for  this 
prohibition,   the    legislature,    notwithstanding    they    were    called 

1  Hatpcll,  IT.  335.    The  twenty-second  rule      joint  resolutions,  and  reports,  from  one  8e»- 
of  the  house  of  representatives  of  the  United     sion  to  another  of  the  same  congresg. 
States  provides  for  the  continuance  of  bills, 

18* 


210  LEGISLATIVE   ASSEMBLIES.  [PaRT   IL 

together  for  a  special  purpose,  might  proceed  upon  any  business 
they  ghould  think  proper. 

523.  The  constitutions  of  Florida,  Alabama,  Mississippi,  Louis- 
iana, Kentucky,  Arkansas,  and  Wisconsin,  while  they  provide  that 
the  governor  on  extraordinary  occasions,  may  call  meetings  of  the 
legislature,  at  the  place  appointed  by  law  for  their  assembling,  pro- 
vide, also,  that  if  that  place  has  become  unsafe  and  improper  by 
reason  of  an  enemy  or  disease,  the  session  may  be  called  at  a 
different  place.  In  Texas,  the  place  may  be  changed,  if  the  ordi- 
nary place  of  meeting  is  in  the  actual  possession  of  a  public  enemy. 

524.  The  only  other  purpose,  for  which  it  is  the  duty  of 
the  executive  to  interfere  in  the  calling  of  a  meeting  of  the 
legislature,  is  to  effect  a  change  in  the  place  of  its  assembling. 
The  place  for  the  sitting  of  the  legislature  is  always  prescribed 
beforehand,  either  by  the  constitution,  or  by  the  laws ;  but,  as  cir- 
cumstances may  occur,  to  make  it  necessary  or  convenient  to 
change  the  place  of  assembling,  authority  is  given  to  the  governor 
by  the  constitutions  of  Maine,  Massachusetts,  New  Hampshire, 
Rhode  Island,  Connecticut,  South  Carolina,  Indiana,  and  Maryland, 
and  to  the  president  of  the  United  States  by  an  act  of  congress,  to 
convene  the  legislature  next  to  be  holden  at  any  time,  at  some  other 
than  the  regular  place  of  assembhng,  provided  he  should  deem  it 
necessary  to  do  so,  in  order  to  preserve  the  health,  lives,  or  freedom 
of  the  members.  A  change  in  the  place  of  meeting  of  the  congress 
of  the  United  States  and  of  the  legislatures  of  Massachusetts,  Con- 
necticut, and  New  Hampshire,  may  take  place,  on  account  of  any 
infectious  distemper  prevailing  in  the  place  where  the  legislature  is 
to  convene,  or  any  cause  happening  whereby  danger  may  arise  to 
the  health  or  lives  of  the  members  from  their  attendance  ;  in  Mary- 
land, to  authorize  this  change  there  must  be  danger  "  from  the  pres- 
ence of  an  enemy  or  from  any  other  cause ; "  in  Rhode  Island  it 
may  take  place,  "  in  case  of  danger  from  the  prevalence  of  epidemic 
or  contagious  disease,"  or  "  for  other  urgent  reasons ; "  in  Indiana, 
"  should  the  seat  of  government  become  dangerous  from  disease  or 
a  common  enemy,"  the  governor  may  convene  the  legislature  at 
any  other  place ;  and  in  Maine,  the  change  may  take  place  on  the 
occurrence  of  danger,  "  from  an  enemy  or  contagious  disease." 

Section  V.    Dissolution. 

525.  The  British  parliament,  as  has  aheady  been  stated,  may  be 
dissolved  by  the  king  at  his  pleasure,  in  virtue  of  his  royal  preroga- 


Chap.  VL]  dissolution.  211 

tive ;  otherwise  it  will  continue  for  seven  years  from  the  day  on 
which  it  was  first  appointed  to  meet ;  and  is  then  dissolved  by 
lapse  of  time.  In  this  country,  every  legislature,  with  one  excep- 
tion, continues  in  existence  for  the  period  for  which  it  was  elected, 
whether  in  session  or  not,  and  cannot  be  dissolved  by  the  executive 
or  any  other  authority.  In  New  Hampshire,  however,  the  constitu- 
tion provides,  that  the  general  court  shall  dissolve  of  itself,  or,  if  in 
session,  be  dissolved  by  the  governor,  seven  days  preceding  the  day, 
on  which  the  term  of  office  of  the  members  expires. 

526.  In  England,  when  it  is  the  intention  of  the  king  to  dissolve 
the  parliament,  the  practice  has  prevailed  for  a  long  time,  first,  to 
prorogue  it  to  a  certain  day ;  and,  then,  at  some  inlennediate  period, 
a  proclamation  issues,  discharging  the  members  of  both  houses  from 
their  attendance  on  that  day,  and  dissolving  the  parliament.  The 
reasons  for  this  practice,  according  to  Hatsell,^  are  probably  those 
suggested  by  Charles  I.  in  his  speech,  in  1628  :  —  "  That  it  should 
be  a  general  maxim  with  kings,  themselves  only  to  execute  pleasing 
things,  and  to  avoid  appearing  personally  in  matters  that  may  seem 
harsh  and  disagreeable." 

527.  The  members  of  the  legislative  assemblies,  in  the  several 
States,  are  chosen  for  certain  specified  terms,  which,  of  course,  ex- 
pire with  the  limitation  of  time,  and  if  the  assembly  is  then  in  ses- 
sion, it  is  dissolved,  with  the  functions  of  its  members.  The  con- 
stitution of  the  United  States  declares  that  representatives  shall 
be  chosen  for  two  years  and  senators  for  six ;  but  it  does  not 
specify  the  time  from  which  this  term  of  service  shall  commence 
running.  In  practice,  however,  the  commencement  of  the  political 
year,  rmder  the  constitution  of  the  United  States,  has  been  fixed  at 
the  fourth  of  March,  in  consequence  of  that  day  having  been  ap- 
pointed by  the  old  congress,  when  the  constitution  was  adopted,  for 
commencing  proceedings  under  it.  Members  were  elected,  there- 
fore, to  the  first  congress,  whose  term  of  service  commenced  on  the 
fourth  of  March,  for  two  years,  and  their  successors  being  elected 
accordingly,  for  tw^o  years,  from  the  expiration  of  the  term  of  office 
of  their  predecessors,  the  fourth  of  March  has  since  been  recognized 
and  practically  established,  as  the  commencement  of  the  pohtical 
year,  under  the  constitution  of  the  United  States.  If  congress  is  in 
session,  when  the  term  of  office  of  the  members  of  one  of  its 
branches  expires,  it  is,  of  course,  dissolved  by  lapse  of  time. 

1  Hatsell,  U.  383. 


LAW  AND   PRACTICE 


or 


LEGISLATIVE    ASSEMBLIES. 


PART   THIRD. 

OF   THE    PRIVILEGES   AND   INCIDENTAL   POWERS   OF   A 

LEGISLATIVE  ASSEMBLY. 


(218) 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    THIRD. 

OF  THE    PRIVILEGES   AND   INCIDENTAL    POWERS    OF  A 

LEGISLATIVE  ASSEMBLY. 


528.  The  several  subjects,  embraced  and  treated  of  in  this  part 
of  the  work,  may  properly  be  considered  under  the  following  heads, 
namely :  —  I.  Of  the  General  Nature  of  the  Privileges  and  Incidental 
Powers  of  a  Legislative  Assembly ;  IT.  Of  the  Personal  Privileges 
of  the  Members ;  IIL  Of  the  Collective  or  Aggregate  Privileges  of 
the  Assembly ;  IV.  Of  the  Incidental  Powers  of  a  Legislative  As- 
sembly. 


CHAPTER  FIRST. 

OF   THE   GENERAL  NATURE  OF  THE  PRIVILEGES  AND  INCIDENTAL 
TOWERS   OF  A  LEGISLATIVE  ASSEMBLY. 

529.  The  functions  of  a  legislative  assembly  can  only  be  exer- 
cised, when  the  members  are  assembled  together,  as  a  legislative 
body,  that  is,  as  a  collective  and  representative  body  of  the  whole 

(215) 


216  LEGISLATIVE  ASSEMBLIES.  [PaRT   III. 

people,  at  the  time  and  place,  appointed  and  established  for  the 
purpose  of  such  meeting ;  but  singly  or  separately,  or  at  any  other 
time  or  place,  the  members  have  no  legislative  power  or  authority 
whatever.^  It  is  essential,  therefore,  in  order  to  enable  the  mem- 
bers to  assemble  themselves,  and  to  remain  together,  for  the  pur- 
poses for  which  they  are  constituted,  that  they  should  not  be  pre- 
vented or  withdrawn  from  their  attendance,  by  any  causes  of  a  less 
important  character;  but,  that  for  a  certain  time,  at  least,  they 
should  be  excused  from  obeying  any  other  call,  not  so  immediately 
necessary  for  the  great  services  of  the  nation ;  and  hence  it  has 
always  been  admitted,  that  the  members  of  a  legislative  assembly, 
during  their  service  and  attendance,  as  such,  were  entitled  to  be 
exempted  from  several  duties,  and  not  considered  as  liable  to  some 
legal  processes,  to  which  other  citizens  were  by  law  obliged  to  pay 
obedience.2 

530.  It  is  not  enough,  however,  to  secure  the  free  attendance  of 
the  members  merely ;  they  must  always  be  protected  in  the  free 
enjoyment  of  the  rights  of  speech,  debate,  and  determination,  in 
reference  to  all  subjects  upon  which  they  may  be  rightfully  caUed 
to  deliberate  and  act ;  and,  hence,  it  is  established  as  a  general 
principle  of  parhamentary  law,  that  no  member  of  a  legislative 
assembly  can  be  questioned  or  punished  by  any  other  court  or 
authority,  but  only  by  the  assembly  itself  of  which  he  is  a  member, 
for  any  thing  said  or  done  by  him  in  that  capacity. 

531.  The  rights  and  immunities  alluded  to  in  the  foregoing  par- 
agraphs belong  principally  to  the  individual  members,  and  only 
secondarily  and  indirectly  to  the  assembly  itself  ;3  but  there  are 
also  other  legislative  rights  and  immunities,  equally  essential  to 
enable  the  assembly  to  perform  the  functions  with  which  it  is 
invested,  which,  being  directed  rather  to  the  maintenance  of  its 
collective  authority  than  to  the  security  of  the  individual  members, 
may  be  properly  said  to  belong  primarily  to  the  assembly  itself, 
and  only  secondarily  and  by  relation  to  the  members  of  which  it  is 
composed.* 

532.  All  these  rights  and  immunities,  both  of  the  members,  indi- 
vidually, and  of  the  assembly  in  its  collective  capacity,  are  known 
by  the  general  name  of  privileges ;  and  when  they  are  disregarded 
by  any  individual  or  authority,  whose  duty  it  is  to  take  notice  of 

1  Whitelocke,  IL  192 ;  Mass.  Reports,  II.  27.  *  The  personal  privileges  cannot  be  waived 

* "  When  you  violate  the  privilege  of  one  by   the    members    themselves,  without    the 

member  of  this  house,  you  do  it  to  the  whole  consent  of  the    assembly.     Dwarris,  I.  103; 

house."     Grey,  III.  68.     By  Mr.  Speaker.  D'Ewes,  436;   Foriam  v.  Lord  Rokeby,  T nun- 

«  HatseU,  I.  2.  ton's  Reports,  IV.  668 ;  Taunt.  Rep.  VII.  172, 


CUAP.  I.]  GENERAL  NATURE   OP   PRIVILEGE.  217 

and  observe  them,  or  when  they  are  directly  attacked  in  any  "way, 
or,  in  general,  when  any  impediment  or  obstruction  is  interposed  to 
the  free  proceeding  of  a  legislative  assembly  or  its  members,  the 
offence  is  denominated  a  breach  of  privilege. 

533.  The  privileges  of  a  legislative  assembly  would  be  entirely 
ineffectual  to  enable  it  to  discharge  its  functions,  if  it  had  no  power 
to  punish  offenders,  to  impose  disciplinary  regulations  upon  its 
members,  or  to  enforce  obedience  to  its  commands.  These  powers 
are  so  essential  to  the  authority  of  a  legislative  assembly,  that  it 
cannot  well  exist  without  them ;  and  they  are  consequently  entitled 
to  be  regarded  as  belonging  to  every  such  assembly  as  a  necessary 
incident.  The  privileges  and  the  powers  of  a  legislative  assembly 
are  therefore  so  far  connected  together  that  the  latter  are  the  neces- 
sary complement  of  the  former. 

534.  The  privileges  and  powers  which  were  claimed  and  exer- 
cised in  ancient  times  by  the  two  houses  of  the  British  parliament, 
embraced  a  wide  extent  of  jurisdiction,  legislative,  judicial,  and 
administrative,  and  were  to  a  considerable  extent  vague,  indefinite, 
and  anomalous.  Their  nature  and  extent  formed  a  fruitful  and 
fi-equent  subject  of  inquiry,  and  gave  rise  to  numerous  controver- 
sies, sometimes  between  the  two  houses  themselves,  and  sometimes 
between  them  or  one  of  them,  on  the  one  hand,  and  the  king,  or 
some  of  the  courts  on  the  other.  In  consequence  of  these  contro- 
versies, the  privileges  and  pow^ers  of  parliament  have  gradually 
assumed  a  more  distinct  form  and  become  more  definite  in  their 
object;  so  that  in  modern  times,  those  only  remain  which  are 
essential  to  enable  each  branch  to  perform  its  appropriate  constitu- 
tional functions ;  and  these  are  now  as  well  recognized  and  estab- 
lished, and  as  accurately  defined,  partly  by  usage,  partly  by  la^v, 
and  partly  by  the  admission  of  coiirdinate  authorities,  as  are  any  of 
the  rules  and  principles  of  the  common  law. 

535.  During  the  reigns  of  George  I.  and  11.  and  for  some  time 
afterwards,  it  appears  to  have  been  the  established  principle,  that 
any  illegal  or  wrongfully  injurious  act,  which  subjected  a  member 
to  any  inconvenience,  or  had  a  tendency  to  divert  his  mind  or  his 
attention  from  his  parliamentary  duties,  was  a  breach  of  privilege 
and  punishable  as  such.  Thus,  there  is  a  great  number  of  cases 
of  complaints  in  the  house  of  commons  for  breaches  of  privilege 
which  were  nothing  more  than  trespasses  upon  the  real  or  personal 
estates  of  members,  and  in  no  way  affected  their  persons.  Some  of 
these  complaints  are  sulEciently  curious.  One  member  com- 
plained, that  several  men,  who  were  at  work  upon   his  tenant's 

19 


218  LEGISLATIVE    ASSEMBLIES.  [ParT    III. 

land  had  been  turned  out;  another  that  several  persons  had  taken 
and  carried  away  timber-trees,  and  quantities  of  fagots  belonging 
to  him ;  another  that  several  persons  had  dug  quantities  of  lead 
ore  out  of  his  mines ;  another,  that  a  person  had  made  a  forcible 
entry  into  and  a  lease  of  part  of  his  estate ;  another,  that  several 
persons  had  broken  open  his  gate,  and  drove  a  great  number  of 
waggons  over  his  field  ;  another,  that  several  persons  had  killed  a 
great  number  of  his  rabbits.  In  these  cases,  after  the  offending 
parties  had  been  sent  for  in  custody,  further  proceedings  w^ere 
usually  stayed,  on  the  house  being  informed  that  the  party  had 
made  satisfaction.  It  was  with  such  precedents  as  these  before 
him,  that  Blackstone  lays  down  the  doctrine  of  the  large  and  indefi- 
nite natvire  of  privilege.  "  Privilege  of  parliament  was  principally 
established,  in  order  to  protect  its  members  not  only  from  being 
molested  by  their  fellow-subjects,  but  also  more  especially  from 
being  oppressed  by  the  power  of  the  crown.  K  therefore  all  the 
privileges  of  parliament  were  once  to  be  set  down  and  ascer- 
tained, and  no  privilege  to  be  allowed  but  what  was  so  defined 
and  determined,  it  were  easy  for  the  executive  power  to  devise 
some  new  case,  not  ■v^dthin  the  line  of  privilege,  and  under  pretence 
thereof  to  harass  any  refractory  member,  and  violate  the  freedom 
of  parliament.  The  dignity  and  independence  of  the  two  houses 
are  therefore  in  great  measure  preserved  by  keeping  their  privileges 
indefinite."  This  doctrine  went  upon  the  ground,  that  the  house 
of  commons  by  a  declaratory  resolution,  operating  retrospectively, 
could  make  any  thing  a  breach  of  privilege,  which  it  might  think 
fit  to  bring  within  its  jurisdiction.  This  right,  lately,  if  not  now 
claimed  in  theory,  appears  to  be  abandoned  in  practice.^ 

536.  In  both  branches  of  the  British  parUament,  the  privileges 
of  the  members  are  doubtless  founded  in  the  same  general  reason, 
namely,  the  necessity  of  their  existence  to  enable  a  legislative  body 
to  perform  its  appropriate  functions ;  but  in  the  house  of  commons 
a  custom  has  prevailed  from  a  very  early  period,  which  seems  also 
to  imply  the  necessity  of  a  special  grant  from  the  king,  at  the  com- 
mencement of  every  new  parliament.  When  the  house  of  com- 
mons first  assembles  after  a  general  election,  the  speaker  elect,  on 
being  presented  to  the  king,  in  the  house  of  lords,  and  confirmed, 
makes  a  claim,  on  behalf  of  the  commons,  of  their  ancient  privi- 
leges, which  are  thereupon  recognized  and  allowed  by  the  king. 
The  origin  of  this  practice,  or  the  reason  of  it,  cannot  now  be  ascer- 

1  May,  108;  see  also  Thorpe's  Case,  Comm.  Jour.  X.  402. 


CnAP.    I.]  GENERAL   NATURE   OF  PRIVILEGE.  219 

tained  with  certainty.  It  may  be  conjectured,  however,  that  when 
the  commons  and  lords  separated,  and  the  former  became  a  sepa- 
rate and  co'irdinate  branch,  the  members  of  which  did  not,  like  the 
lords,  sit  in  their  own  right,  but  as  the  representativi-s  of  the  people, 
it  was  ihought  necessary  to  invest  them  with  the  privileges  of  a 
court  of  parliament,  by  a  special  law.  This  conjecture  is  strength- 
ened by  the  form  of  the  ceremony,  which  corresponds  precisely  to 
the  ancient  mode  of  making  laws,  namely,  a  petition  preferred  by 
the  commons  and  assented  to  by  the  king  and  lords ;  and  also  by 
the  fact,  that  upon  the  election  and  approval  of  a  new  speaker  in 
the  same  parliament,  he  does  not  renew  the  claim  of  privileges  for 
the  commons.  But  whatever  may  have  been  the  origin  of  the  cus- 
tom, or  its  supposed  necessity,  it  is  not  now^  imagined  to  be  any 
more  requisite  to  the  existence  of  the  privileges  of  the  commons 
than  to  those  of  the  lords ;  and  the  former  would  undoubtedly  be 
held  to  exist,  though  the  speaker  should  omit  to  claim  them,  at  the 
commencement  of  the  parliament ;  or  if,  when  claimed,  they  should 
be  refused.^  The  commons,  says  Hatsell,  by  this  ceremony  never 
acknowledged  "  that  their  privileges  were  derived  from  the  grace 
and  permission  "  of  the  sovereign ;  "  but  they  considered  it  as  a 
pubhc  claim  and  notification  to  the  king,  and  to  the  people,  of  the 
privileges  of  the  house  of  commons,  that  none  might  plead  igno- 
rance." - 

537.  It  was  anciently  attempted  by  the  house  of  commons,  not 
only  to  arrogate  to  themselves  the  exclusive  jurisdiction  of  ail  cases 
in  which  they  pretended  that  their  privileges  were  concerned,  even 
incidentally  ;  but,  also,  and  as  a  necessary  consequence,  to  deny  all 
other  tribunals  all  knowledge  of  what  those  privileges  were  ;  but 
both  these  pretensions  have  for  a  long  time  been  abandoned ;  the 
privileges  of  the  members  are  now  a  part  of  the  law  of  the  land, 
and,  as  such,  taken  notice  of  judicially  by  all  courts  and  tribunals; 
and,  at  the  present  day,  whenever  a  question  of  privilege  arises  or 
is  made  in  any  court,  either  directly  or  indirectly,  in  the  exercise  of 
its  ordinary  jurisdiction,  such  court  is  bound  to  take  notice  of  and 
decide  upon,  the  privilege  in  question ;  and  such  decision  is  binding 
and  conclusive,  so  far  as  the  particular  case  is  concerned,  but  with- 
out prejudice  to  the  right  of  the  house  itself  to  decide  upon  it  in  an 
equally  conclusive  manner,  whenever  it  is  brought  in  questioL 
there.^     In  this  country,  the  same  principles  prevail ;  and,  with  the 

1  Hatsell,  n.  229.  »  See  May,  143. 

'■i  HatseU.  IL  226. 


220  LEGISLATIVE   ASSEMBLIES.  [PaRT   III 

greater  reason,  as,  in  most  of  the  States,  the  privileges  of  the  mem- 
bers of  our  legislative  assemblies  do  not  rest  merely  upon  common 
or  statute  law,  but  upon  constitutional  provisions.^ 

538.  In  England,  as  has  already  been  remarked,  the  powers  and 
privileges  of  the  two  houses  of  parliament  have  for  a  long  time 
been  so  regulated,  defined,  and  limited,  that  they  are  as  well  estab- 
lished and  known  as  the  maxims  and  principles  of  the  common 
law  ;  and  before  the  American  revolution,  they  were  equally  recog- 
nized and  admitted,  in  this  country,  as  belonging  to  the  colonial 
and  provincial  legislatures.  Since  the  revolution,  they  have  been 
embodied,  in  some  form  or  other,  in  all  the  constitutions  of  govern- 
ment. In  those  constitutions  which  took  the  place  of  the  colonial 
and  provincial  charters,  existing  and  established  institutions  were 
reduced  into  a  written  form,  with  such  alterations  and  additions  as 
the  new  circumstances  made  necessary,  but  with  very  little  change, 
even  of  name,  in  matters  of  comparatively  small  importance,  or 
which  were  already  conformable  to  the  spirit  of  the  new  order  of 
things.  "We  find,  consequently,  little  or  no  change  introduced  by 
the  revolution  into  the  constitution  of  the  second  branch  of  the  leg- 
islative body,  and  no  disposition  manifested  to  limit,  but  rather  to 
strengthen  and  establish,  the  privileges  and  powers,  both  of  that 
and  also  of  the  other  branch,  which  so  far  as  its  constitution  was 
concerned,  was  now  put  upon  the  same  footing  with  the  former. 

539.  In  aU  the  constitutions,  a  legislative  department  is  provided 
for  in  general  terms,  to  consist  of  two  branches,  each  of  which,  as 
to  the  number,  qualifications,  and  elections  of  its  members,  is  par- 
ticularly regulated.  In  some  of  these  constitutions,  certain  powers 
and  privileges  are  enumerated,  in  affirmative  language;  as  belonging 
to  each  branch,  accompanied  sometimes  by  a  general  provision 
covering  aU  other  necessary  powers  and  privileges  ;  in  some,  nega- 
tive words  are  used  in  reference  to  particular  powers ;  in  many  of 
them,  certain  powers  and  privileges  are  expressly  enumerated,  and 
others  equally  essential  to  the  very  existence  of  a  legislative  body 
wholly  omitted ;  but,  in  all,  the  powers  and  privileges  in  question  are 
referred  to  as  existing  and  well-known  principles  of  parliamentary 
law,  and  merely  enumerated  without  being  defined. 

540.  In  this  variety  and  discrepancy  of  constitutional  provisions, 
the  only  mode  of  treating  the  subject,  which  will  be  sufficiently  fuU 
and  satisfactory,  without  being  tediously  minute,  or  running  into 
repetition,  wiU  be  to  consider  the  privileges  and  powers  of  a  legis- 

1  Cojin  V.  Coffin,  Mass.  Rep.  IV.  31,  32. 


Chap   L]  general  nature  of  privileqe.  221 

lative  assembly,  in  the  first  instance,  on  the  broad  ground  of  com- 
mon parliamentary  law ;  and  having  done  this,  to  point  out,  how 
far  these  general  principles  have  been  adopted,  recognized,  or  re- 
strained by  each  particular  constitution. 

541.  The  following  rules  of  constitutional  construction,  which 
seem  to  be  founded  in  reason,  will  assist  us  in  ascertaining  the 
powers  and  privileges  of  our  several  legislative  assemblies,  so  far  as 
they  result  from  j;he  principles  of  parliamentary  law,  in  connection 
with  constitutional  and  legal  provisions. 

542.  I.  It  may  be  laid  down  as  the  first  rule  on  this  subject,  that 
the  eitablishment,  in  general  terms,  of  a  legislative  department,  is 
equivalent  to  an  express  grant,  to  each  branch  composing  it,  of  all 
the  powers  and  privileges  which  are  necessarily  incident  to  a  legis- 
lative assembly.^ 

543.  II.  The  express  enumeration  of  certain  of  these  incidental 
powers  and  privileges,  in  a  constitution  by  which  a  legislative  de- 
partment is  established  in  general  terms,  cannot  be  considered  as 
the  exclusion  of  others  not  named,  unless  negative  terms,  or  words 
equivalent  thereto,  are  used ;  such  affirmative  enumeration  being 
merely  out  of  abundant  caution,  and  its  only  effect,  to  place  the 
subjects  of  it  beyond  legislative  control  or  interference. 

1  Cong.  Globe,  XXI.  1337.  Mr.  Jefferson,  trine  of  the  text  may  now  be  considered  as 
(Manual,  Sec.  III.,)  in  his  remarks  upon  established  by  usage,  and  by  the  cases  of 
Duane's  Case  in  the  senate,  for  a  libel  on  that  Burdett  v.  Abbott,  in  the  fourteenth  volume  of 
branch,  and  upon  the  case  of  Randall  and  Jlr.  East's  Reports,  and  that  of  Anderson  v. 
Whitney,  who  were  convicted  and  punished  Dunn,  reported  in  the  sixth  volume  of  Mr. 
in  the  house  of  representatives,  for  bribery  Wheaton's  collection,  to  which  cases  a  general 
and  coniiption,  lays  down  the  doctrine,  that  reference  is  here  accordingly  made.  The 
the  federal  government  being  one  of  limited  power  of  a  legislative  body,  to  punish  for  a 
powers,  neither  branch  of  congress  can  exer-  contempt,  as  incidental  to  its  power  to  legis- 
cise  any  powers  but  those  which  are  clearly  late,  was  never  more  forcibly  maintained  or 
delegated  to  them  by  the  constitution  and  that  better  expressed  than  by  the  old  congress  of 
until  they  make  a  law  for  the  purpose,  under  the  confederation,  in  a  resolution  of  Jime, 
that  provision  of  the  constitution  which  au-  1777,  on  the  occasion  of  one  of  the  members 
thorizes  them  to  make  all  laws  necessary  and  being  challenged  for  words  spoken  in  debate: 
proper  for  carrying  into  effect  the  powers  "  Jiesoked,  that  congress  have,  and  always 
vested  in  them  by  the  constitution,  neither  had,  authority  to  protect  their  members  from 
house  has  any  authority  to  commit  for  a  con-  insult,  for  any  thing  by  them  said  or  done  in 
tempt.  Fifty  years  have  elapsed,  since  this  congress  in  the  exercise  of  their  duty,  which 
doctrine  was  first  brought  forward;  but  no  is  a  privilege  essential  tothe  freedom  of  de- 
law  has  been  passed,  and  the  power  in  ques-  bate,  and  to  the  faithful  discharge  of  the  great 
tion  has  been  repeatedly  exercised.  The  prin-  trust  reposed  in  them  by  their  constituents." 
ciple,  stated  by  tMr.  Jefferson,  seems  to  con-  Mr.  Gunning  Bedford  the  challenger  was 
found  together  two  things  which  are  essen-  thereupon  summoned  to  appear  before  congress 
tially  different,  the  powers  of  a  legislative  to  answer  for  his  conduct,  and,  having  ap- 
assembly,  as  such,  and  the  subjects  of  legisla-  peared  in  obedience  to  the  requisition,  and 
tion,  and  to  apply  to  the  former,  an  argument  asked  pardon  of  the  house,  and  of  the  member 
which  onlv  bears  upon  the  latter.     The  doc-  challenged,  he  was  discharged. 

19* 


222  LEGISLATIVE   ASSEMBLIES.  [PaRT  III. 

•j44.  III.  "Where  a  particular  power,  whether  given  expressly  or 
by  implication,  is  regulated  by  express  constitutional  provision, 
either  as  to  the  cases  to  which,  or  the  manner  in  which,  it  is  to  be 
applied,  the  power  in  question  is  not  applicable  to  any  other  cases, 
or  in  any  different  manner. 

545.  IV.  Where  there  is  no  constitutional  restriction,  either  by 
negative  words,  or  terms  equivalent  thereto,  and  also  where  there 
is  no  enumeration,  or  a  general  one  only,  the  powers  and  privileges 
of  a  legislative  assembly  may  be  provided  for,  regulated,  or  limited, 
by  law ;  and,  in  aU  these  cases,  if  there  is  no  provision  or  regula- 
tion of  law,  or  only  in  part,  the  first  and  second  rules  above ^iven 
are  applicable. 


CHAPTER   SECOND. 

OF  THE  PERSONAL  PRIVILEGES   OF   THE  MEMBERS. 

546.  The  parliamentary  privileges  coming  under  this  head,  60 
far  as  they  belong  to  the  lords,  being  the  privileges  of  the  peerage 
rather  than  of  parliament,^  have  remained  nearly  the  same  from 
the  earliest  period,  and  are  somewhat  different,  as  to  their  nature 
and  extent,  from  the  corresponding  privileges  of  the  commons ;  but 
the  latter  house  has  from  time  to  time  been  obliged  to  make  new 
claims  of  privilege,  and  to  exert  new  modes  of  maintaining  and 
defending  those  claims,  in  proportion  as  the  lengthening  of  the 
duration  of  the  session  made  other  avocations  inconvenient  and 
incompatible  with  their  parliamentary  duties  ;  and  as  the  increase 
of  their  consequence  in  the  State,  and  their  influence  in  the  man- 
agement of  pubHc  affairs,  rendered  them  more  an  object  of  the 
attention  of  the  ministers  of  the  crown.^  The  principal  view  of 
the  commons,  in  all  their  claims  of  privilege,  has  been  to  enable 
themselves  to  discharge  their  public  duties,  by  a  constant  attend- 
ance in  parliament,  without  being  deterred  by  threats  or  insults  of 
private  persons ;  or  diverted  by  any  concern  for  their  estates  or 
affairs ;  or  restrained  by  the  summons  of  other  courts,  the  arrest  of 
their  bodies  in  civil  cases,  or  commitment  by  order  of  the  crown.^ 
But  they  have  never  gone  the  length  of  claiming  any  exemption 

1  Hammond,  71.  '  Hatsell,  L  206. 

'  HatseU,  I.  206. 


Chap.  II.]  personal  privileges.  223 

from  the  operation  of  the  criminal  laws ;  or  of  attempting  to  pro- 
tect themselves  from  any  prosecution  for  treason,  felony,  or  breach 
of  the  peace  ;  "  being  sensible,  that  it  equally  imported  them,  as 
well  to  see  justice  done  against  them  that  are  criminous,  as  to 
defend  the  just  rights  and  liberties  of  the  subject  and  parliament  of 
England."  i 

547.  The  personal  privileges  of  the  members,  are  so  far  matters 
of  public  concern,  that  they  cannot  be  taken  away  by  any  act  of 
the  assembly,  other  than  by  expulsion  or  its  equivalent ;  nor,  where 
they  are  secured  by  constitutional  provisions,  can  they  be  taken 
away  or  annulled  even  by  an  act  of  the  legislature.^  For  the  same 
reason,  also,  it  is  not  in  the  power  of  a  member  to  waive  any  of 
his  privileges,  the  purpose  of  which  is  to  enable  him  to  give  his 
attendance ;  -^  though  there  seems  to  be  no  good  reason  why  he 
might  not  waive  any  of  the  others. 

548.  The  personal  privileges  of  the  members  are  intended  to 
enable  them  to  give  their  attendance ;  to  guarantee  them  against 
all  restraint  or  intimidation  in  the  discharge  of  their  duties ; 
and  to  facilitate  communication  between  them  and  their  immedi- 
ate constituents.  These  privileges  are  the  following,  namely  :  — 
1st,  Exemption  from  legal  process  ;  2d,  Exemption  from  service  as 
jurors  or  witnesses ;  3d,  Freedom  of  debate  and  proceedings ;  4th, 
Franking  Privilege.  These  subjects  being  treated  of  in  their  order, 
a  fifth  section  wdU  be  devoted  to  the  personal  disabilities  of  mem- 
bers, which  seem  proper  to  be  treated  of  in  this  comiection. 


Sectiox  I.  —  Exemption  from  Legal  Process. 

549.  Exemption  from  legal  process,  which  is  one  of  the  most 
important  of  the  personal  privileges  of  the  members  of  a  legislative 
assembly,  will  be  considered  under  the  following  heads,  namely :  — 
1st,  Its  nature  and  extent  as  to  persons ;  2d,  Of  the  cases  to 
which  it  is  applicable ;  3d,  Of  this  privilege  as  affected  by  the  con- 
stitutions of  the  several  States ;  4th,  Of  the  duration  of  this  privi- 
lege ;  and,  5th,  In  what  manner  it  may  be  taken  advantage  of. 

»  Hatsell,  I.  207.  *  D'Ewes,  436;  Dwarris,  I.  103;  Fortam  v. 

«  Coffin  V.  Coffin,  Mass.  Rep.  IV.  27.  Lord  Rokeby,  Taunt.  Reports,  IV.  668;  Taunt 

Rep.  VII.  172. 


224  LEGISLATIVE   ASSEMBLIES.  [PaRT   IIL 


Article  I.  —  Of  the  Nature  and  Extent  of  this  Privileg-e  as  to 

Persons. 

550.  The  personal  privileges  of  the  members  of  a  legislative 
assembly,  being  intended  for  the  most  part  to  enable  them  to  dis- 
charge their  duties  as  such,  and  essential  to  that  end,  it  is  clear, 
that  those  persons  only  can  claim  the  rights  and  immunities  secured 
by  these  privileges,  who  are  either  eniitled  prima  facie  to  take  upon 
themselves  the  functions  of  members,  or  whose  official  character  is 
admitted  or  recognized  by  the  assembly  itself ;  for  none  others  are 
entitled,  or  can  be  admitted,  to  perform  the  functions  of  members. 

551.  From  the  time  of  an  election  to  the  time  of  meeting  of  the 
assembly,  to  which  period,  one  of  the  most  important  of  the  per- 
sonal privileges  of  members  refers,  namely,  that  of  freedom  from 
arrest  in  going  to  the  place  of  meeting,  those  only  who  have  a  right 
to  take  upon  themselves  the  functions  of  members  are  entitled  to 
privilege,  that  is  to  say,  who  have  been  declared  to  be  elected  by 
the  competent  officers,  and  have  received  certificates  of  their  elec- 
tion, or  have  been  otherwise  duly  returned. 

552.  After  the  commencement  of  the  session,  and  whilst  the 
assembly  is  sitting,  those  only  can  be  accounted  as  members,  who 
have  been  duly  elected  as  above  mentioned,  but,  M^ho,  for  some 
reason,  have  not  yet  taken  their  seats,  or,  who,  having  taken  their 
seats,  are  admitted  and  recognized  by  the  assembly  itself,  as  mem- 
bers. 

553.  After  the  termination  of  the  session,  either  by  adjournment, 
or  prorogation,  those  only  are  to  be  regarded  as  members,  who  were 
duly  in  or  prima  facie  entitled  to  the  exercise  of  their  official  func- 
tions, at  the  time  of  such  adjournment  or  prorogation  ;  or  who  have 
since  been  duly  elected  to  fill  vacancies,  in  which  case  their  rights 
are  the  same  as  those  of  members  originally  elected,  prior  to  the 
first  meeting  of  the  assembly. 

554.  The  privileges  of  the  members  are  of  so  great  importance 
that  no  man  is  allowed  to  plead  ignorance  of  the  persons  of  those 
who  are  entitled  to  them.  It  is  laid  down  accordingly  by  Sir 
Edward  Coke,^  "that  every  man  is  obliged,  at  his  peril,  to  take 
notice  who  are  members  of  either  house,  returned  of  record ; "  and, 
as  it  is  also  a  general  principle  of  the  English  parliamentary  law,^ 

1  Fourth  Institute,  24.     See  also  Fortam  v.         ^  Hatsell,  II.  75,  note.    See  also  Hatsell,  L 
Lord  Moheby,  Taunt.  Rep.  IV.  668.  166. 


Chap.  II]  personal  privileges.  225 

that,  "  at  the  moment  of  the  execution  of  the  indentm-e,  (or  return,) 
the  existence  of  the  member,  as  a  member  of  parliament,  com- 
mences to  all  intents  and  purposes  whatsoever,"  it  follows,  that  in 
England,  every  man  is  bound  to  take  notice  of  the  ofTicial  character 
of  a  member  of  the  house  of  commons,  from  the  moment  of  the 
execution  of  the  indenture  or  return. 

555.  In  this  country,  the  making  of  the  certificate  of  election  by 
the  competent  officers  being  equivalent  to  the  execution  of  the  in- 
denture, according  to  the  form  of  proceeding  in  England,  it  may  be 
laid  down  as  a  rule  of  our  parliamentary  law,  in  conformity  with 
the  principles  above  stated,  that,  when  an  election  has  been  duly 
declared  and  certified,  by  the  proper  returning  officers,  every  citizen, 
and  much  more  every  public  officer,  is  bound  to  take  notice  of  the 
official  character  of  the  member  elected.  In  England,  as  has  been 
seen,  in  another  place,  the  returns  on  file  in  the  crown  office  always 
indicate  who  are  members,  to  the  end  of  the  parliament,  because 
none  but  persons  duly  returned  are  allowed  to  take  seats,  in  the 
fijst  instance,  and,  when  an  election  or  return  is  set  aside,  and  a 
petitioner  admitted  to  a  seat,  instead  of  the  member  originally 
returned,  the  return  is  amended,  taken  off  the  file,  or  a  new  one 
placed  there,  in  conformity  with  the  decision  of  the  house.  In  our 
legislative  bodies,  it  is  not  supposed,  that  this  form  of  proceeding  is 
always  or  even  at  all  observed ;  but,  where  it  is  not,  the  order  or 
vote  of  the  house  must  be  considered  of  equivalent  authority.  The 
presiding  officer,  when  not  a  member  of  the  body  over  which  he 
presides,  is  entitled  to  the  privileges  of  a  member,  at  least,  during 
the  time  he  presides. 

556.  It  being  a  principle  of  parliamentary  law,  that  a  legislative 
assembly  is  the  sole  and  exclusive  judge  of  the  returns  and  elections 
of  its  own  members,^  it  follows  that  the  validity  of  an  election  or 
return  cannot  be  drawn  into  question  on  a  claim  of  privilege ;  for, 
otherwdse,  the  independence  of  the  assembly  would  be  placed  com- 
pletely at  the  discretion  and  in  the  power  of  other  cor^rdinate 
branches  of  the  government ;  but,  on  the  other  hand,  as  the  privi- 
leges of  members  "  are  not  to  be  used  for  the  danger  of  the  com- 
monwealth," -  and,  moreover,  are  sometimes  necessary  to  be  claimed 
when  the  assembly  is  not  in  session,  it  is  an  admitted  principle,  that 
their  validity  and  extent  are  also  to  be  judged  of  by  the  tribunal  in 
which  the  claim  is  made.     K  in  this  way,  any  collision  of  authority 

1  Ante,  (j  138.     This  principle  is  very  gen-         *  Hatsell,  L  206. 
Brally  declared  in  the  constitutions  of  the 
>everal  States. 


226  LEGISLATIVE   ASSEMBLIES.  [PaRT    III 

or  jurisdiction  should  arise,  the  difficulty  can  only  be  accommodated 
by  concession. 

557.  The  personal  privileges  of  members  continue  in  full  force, 
notwithstanding  their  absence,  either  with  or  without  leave  of  the 
assembly,  in  the  same  manner,  and  to  the  same  extent,  as  if  they 
were  present ;  for,  otherwise,  it  would  be  in  the  power  of  any  mem- 
ber, by  his  own  act  or  fault,  to  oust  the  assembly  of  its  right  to  his 
attendance  and  services ;  but,  on  ceasing  to  be  a  member,  either  by 
resignation,  acceptance  of  an  incompatible  office,  or  by  expulsion, 
the  privilege  is  at  an  end. 

558.  At  the  period,  when  parliamentary  privilege  by  the  gradual 
process  of  claim  by  one  or  both  of  the  two  houses,  coupled  with 
the  submission  of  individuals  against  whom  it  was  exerted,  and 
the  sanction  of  the  judicial  tribunals,  had  risen  to  its  greatest  height, 
the  privilege  of  exemption  from  legal  process  embraced  the  ser- 
vants of  members,  and  extended,  also,  to  their  goods  and  estates ; 
the  former  being  exempted  from  summons  and  arrest,  and  the  latter 
from  attachment ;  but  the  personal  privileges  of  members,  so  far  as 
they  operated  to  obstruct  the  ordinary  course  of  justice,  have  been 
since  reduced,  in  part  by  the  voluntary  abandonment  of  the  two 
houses,  but  chiefly  by  sundry  statutes,^  and  particularly  by  that  of 
10  Geo.  HI.  c.  50,  which  allows  members  to  be  sued,  and  their 
estates  to  be  attached,  and  which  also  withdraws  all  protection  what- 
ever from  their  servants  ;  so,  that,  at  the  present  day,  the  privilege 
of  exemption  from  legal  process,  so  far  as  relates  to  the  subjects  of 
it,  is  confined  strictly  to  the  persons  of  members,  and  of  the  officers, 
such  as  the  sergeant-at-arms,  door-keepers,  and  clerks  attending 
upon  either  house.^ 


Article  II.     Of  the  Cases  to  which  this  Privilege  is  applicable. 

559.  In  regard  to  the  cases  to  which  this  privilege  extends,  it  is 
laid  down  by  Sir  Edward  Coke,^  that,  "  generally,  the  privilege  of 
parliament  do  hold,  unless  it  be  in  three  cases,  namely,  treason,  felony, 
and  the  peace  ; "  and,  the  same  language  is  used,  in  stating  the  rule 
on  this  subject,  by  all  the  compilers  and  writers,  since  his  time,  as 
well  as  by  the  house  of  commons,  in  their  frequent  resolutions  con- 
cerning privilege ;  though,  sometimes,  instead  of  the  phrase,  "  the 
peace,"  the. words  "breach  or  surety  of  the  peace,"  are  used.     The 

1  12  &  13  Will.  m.  c.  3;  2  &  3  Ann.  c.  18;         "  Lex  Parlinmentaria,  380. 
11  Geo.  n.  c.  24.  8  Fourth  Institute.  25. 


CiLAP.   IL]  PERSONAL   PRIVILEGES.  227 

correctness  of  the  distinction,  however,  implied  in  the  rule  as  thus 
stated,  is  called  in  question  by  lord  chancellor  Brougham,  as  "  incon- 
sistent with  itself,  fruitful  of  bad  consequences,  and  incapable  of 
being  pursued  through  the  authorities;"^  and  he  lays  down  the 
following  as  "the  plain,  broad,  obvious,  and  intclhgible  rule," 
namely,  "that  with  respect  to  every  Ihing  which  is  in  its  nature 
criminal,  privilege  of  parliament  will  be  no  protection  ;  but  with 
respect  to  every  thing  in  the  nature  of  civil  process,  whatever  may 
be  the  technical  and  outward  form  of  that  process,  such  privilege 
wih  enure  to  protect  the  party."  ^ 

560.  It  is  quite  obvious  that  the  excepted  cases  of  "treason, 
felonv,  and  the  peace,"  do  not  cover  the  whole  ground  of  criminal 
matters,  inasmuch  as  they  do  not  in  strictness  include  those  mis- 
demeanors, such,  for  example,  as  perjury,  which  are  neither  felonies, 
nor  accompanied  with  a  breach  of  the  peace,  but  which  are  never- 
theless as  criminal,  and  punishable  with  as  much  severity,  as  many 
felonies,  and  the  prosecution  and  punishment  of  which  are  equally 
important  to  the  public  welfare.  In  these  and  other  cases  of  the 
same  description,  which  do  not  fall  properly  under  either  of  the 
heads  of  treason,  felony,  or  the  peace,  lord  chancellor  Brougham 
savs,  that  "  the  privilege  of  parliament  has  been  held  to  be  no  pro- 
tection,"^ and,  it  is  not  unworthy  of  notice,  also,  that  in  the  lan- 
guage of  Sir  Edward  Coke,  the  rule  is  qualified  by  the  term 
"  o-enerallv."  In  this  uncertaintv,  therefore,  as  to  the  rule,  as  an 
abstract  proposition,  it  will  be  useful  to  present  the  results  of  the 
authorities  somewhat  in  detail. 

561.  I.  Ir,  regard  to  civil  process,  properly  so  called,  that  is,  pro- 
ceedings instituted  for  the  enforcement  of  a  civil  right,"*  either  by 
way  of  damages  for  its  infraction,  or  by  way  of  recovery  of  a  spe- 
cific thing,  there  can  be  no  doubt,  that  the  privilege  protects  from 
an-est  and  imprisonment,  whether  the  process  is  original,  mesne, 
or  final,  and  whether  the  proceeding  is  by  action  at  the  suit  of  an 
individual,  or  by  information,^  or  other  process,  at  the  suit  or  on 
the  ])ehalf  of  the  public.'^ 

562.  II.  In  regard  to  criminal  process,  properly  so  called,  that  is, 
proceedings  instituted  for  the  apprehension  and  trial,  before  a  com- 
petent trit)unal,  with  a  view  to  punishment,  of  one  accused  of 
crune,  the  authorities  are  equally  clear,  that  the  privilege  aftbrds  no 

1  WiHesky's  Case,  Russell  &   Mylne's  Re-         '  H;ile  oruParlinincnts,  30. 
ports,  11.  673.  *  Jed'erson's  Manu.'il,  §  3. 

2  ]Vestineiilh  x.Westmenth,  La.yf  Journal,  IX.         '  Hale  on  Parliaments,  30. 
Chancery),  179.  •  Hale  on  Parliaments,  16. 


228  '  LEGISLATIVE   ASSEMBLIES.  [PaKI    IIL 

protection,  provided  that  the  offence,  on  or  in  reference  to  which  the 
process  is  issued,  is  either  treason,  felony,  or  breach  of  the  peace, 
or  the  proceeding  in  question  is  instituted  for  the  purpose  of 
obtaining  surety  of  the  peace.^ 

563.  IIL  In  reference  to  misdemeanors,  unaccompanied  by  a 
breach  of  the  peace,  which  are  not  technically  included  in  the 
excepted  cases,  the  authorities  are  conflicting.  Lord  Camden,  in 
the  case  of  John  Wilkes,  who,  whilst  a  member  of  the  house  of 
commons,  was  indicted  for  a  seditious  libel,  discharged  him  from 
arrest,  on  the  ground,  that  the  offence  was  neither  treason,  felony, 
nor  breach  of  the  peace,  and  consequently,  came  within  the  privi- 
lege of  parliament.^  On  the  contrary,  it  was  afterwards  resolved 
by  both  houses,  in  reference  to  the  same  subject,  and  upon  reasons, 
which  apply  equally  to  every  indictable  offence,  that  the  privileges 
of  parliament  did  not  extend  to  the  case  of  writing  and  publishing 
a  seditious  libel ;  ^  and  Lord  Brougham  in  the  cases  cited  in  a  pre- 
ceding paragraph,  (in  neither  of  which,  however,  was  the  decision 
of  this  point  necessary,)  lays  down  the  rule,  in  general  and  broad 
terms,  that  the  privilege  of  parliament  does  not  extend  to  any  crimi- 
nal matter  or  proceeding  whatever.  In  this  conflict  of  authorities, 
the  reason  of  the  whole  matter,  which  clearly  excludes  all  distinc- 
tion of  offences,  in  reference  to  this  subject,  may  be  allowed  to  turn 
the  scale,  in  favor  of  the  broad  rule,  which  withdraws  the  protec- 
tion of  parliamentary  privilege  from  offences  and  criminal  proceed- 
ings of  every  description. 

564.  IV.  There  is  another  class  of  cases,  which  do  not  come 
properly  under  the  denomination  of  either  civil  or  criminal  proceed- 
ings, as  above  defined,  but  which  ordinarily  give  rise  to  an  attach- 
ment or  an  arrest  and  imprisonment  of  the  person,  namely ;  con- 
tempts of  the  judicial  tribunals,  either  by  disobedience  of  their 
orders,  or  by  contumelious  and  disorderly  behavior  towards  their 
authority  or  in  their  presence.  In  reference  to  these  cases,  the 
authorities  show,  that  where  the  contempt  is  a  mere  disobedience 
of  an  order  of  the  court,  made  for  the  sole  purpose  of  enforcing  a 
civil  right,  and  in  the  nature  of  a  process  to  compel  the  doing  of  a 
specific  act,  as,  for  the  payment  of  money,  or  other  performance 
of  an  award,^  or  for  the  payment  of  costs,^  the  privilege  wiU  protect 
against  an  attachment ;  but,  where  the  contempt  arises  from  the 

1  Rex  V.  Ferres,  Burrow's  Reports,  I.  631.  <   Walker  v.  Earl  of  Grosvenor,  Taunt.  Rep. 

2  See  May,  130.  *  Yll.  171;   GitmurY.  Knatchbull,  Same,  US. 

*  Dwarris,  Part  I.  98;  Comm.  Jour.  XXIX.         *  Wesimealhv.  Westmeaih,  Law  Journal,  IX. 
889.  (Chancery),  179. 


Chap.  II.]  personal  privileges.  229 

disobedience  of  such  an  order,  and  is  accompanied  by  criminal  in- 
cidents, as  where  a  ward  of  the  court  of  chancery  was  clandestinely 
removed  from  the  custody  of  the  person  with  whom  the  ward  was 
residing  under  the  authority  and  by  the  order  of  the  court ; '  or, 
where  it  consists  of  contumeliovis,  disorderly,  or  indecent  behavior 
towards  and  in  presence  of  a  judicial  tribunal,  as,  for  example, 
refusing  1o  be  sworn  as  a  witness,'-  the  privilege  wnll  afford  no  pro- 
tection. 

565.  V.  There  is  still  a  further  class  of  cases,  somewhat  analo- 
gous to  those  last  mentioned,  which,  so  far  as  the  privilege  of  parlia- 
ment is  concerned,  seem  to  have  been  placed  upon  a  distinct  fooling 
from  ordinary  contempts  of  the  judicial  tribunals.  These  are  cases 
in  which  the  personal  liberty  of  the  citizen  is  involved,  and  the  con- 
tempt consists  in  refusing  obedience  to  a  writ  de  homine  repleg-iando, 
or  of  habeas  corpus.  In  cases  of  this  kind,  the  privilege  of  parlia- 
ment affords  no  protection.  In  reference  to  the  first-mentioned 
writ,  it  is  laid  down  by  Fit/herbert,-^  that  "  if  there  be  any  eloign- 
ment  returned  by  the  sheriff,  the  plaintiff  shall  have  a  capias  in  with- 
ernam, to  take  the  defendant's  body,  and  to  keep  the  same  quonsqne, 
etc.,  whether  it  be  ajoeerof  the  realm  or  other  common  person  ;  "  and 
in  reference  to  the  w"rit  of  habeas  corjrus,  it  was  "  ordered  and  de- 
clared "  by  the  lords,  in  conformity  with  a  decision  of  the  court  of 
king's  bench,^  which  gave  occasion  to  the  resolution,  "  that  no  peer 
or  lord  or  lord  of  parliament  hath  privilege  against  being  compelled, 
by  process  of  the  coiu'ts  of  Westminster  Hall,  to  pay  obedience  to 
a  writ  of  habeas  corpus  directed  to  him."  ^ 


Article  III.     Of  this  Privilege  as  affected  by  the  Constitutions  of 

the  several  States. 

566.  Having  thus  examined  the  subject  of  the  privilege  of 
exemption  from  legal  process,  on  the  ground  of  common  parlia- 
mentary law,  it  remains  to  point  out  how  far  the  general  principles 
relating  thereto  have  been  adopted,  recognized,  or  resti^ained  by  con- 
stitutional or  legal  provisions,  in  this  country.  In  the  constitution 
of  the  United  States  and  in  those  of  the  several  States,  except 
Vermont,  New  York,  Virginia,  and  North  Carolina,  this  privilege 
is  particularly  defined  and  recognized. 

1    n'ellesky's  case,  Russell  &  Mylre's  Rep.  ^  Natura  Breviiim,  155,  C. 

11.  639.     See  also  Willdnson  v.  Boulton,  Lev-  *  7?ta;  v.  Ferrers,  Burrows's  Rep.  I.  C3l. 

inz's  Reports,  I.  162.  '  June  8th,  1757:  Lords'  Jour.  XXIX.  181 

»  Hex  V.  Preston,  Sulkeld,  L  278. 

^0 


230  LEGISLATIVE   ASSEMBLIES.  [PaRT   IIL 

567.    in  the  greater  number  of  the  constitutions  it  is  expressly- 
provided,  that  members  shall  be  privileged  from  arrest,  during  their 
attendance    at   the    session    of   their  respective    houses,    and    in 
going  to  and  returning  from  the  same,  in  all  cases,  except  "  treason, 
felony,  and  breach  of  the  peace."     This  it  wiU  be  recollected    is 
the  form  in  which  the  privilege  is  stated  by  Sk  Edward  Coke,  and 
in  which  it  is  usually  expressed  by  the  Enghsh  writers  on  parlia- 
mentary law;  and  it  was  undoubtedly  adopted  in  the  constitutions 
as  correctly  expressing  the  parliamentary  rule  on  the  subject.     The 
inaccuracy  of  the   language  has  already  been  pointed  out,  and  it 
has  been  shown,  that,  in  England,  the  exception  embraces  aU  crim- 
inal matters  whatsoever,  and,  of  course,  includes  many  cases  which 
do  not  fall  within  the  denomination  either  of  treason,  felony,  or 
breach  of  the  peace.     The  question,  therefore,  arises,  whether  the 
exception  of  treason,  felony,  or  breach  of  the  peace,  being  stated  in 
express  terms,  in  these  constitutions,  is  to  be  understood  strictly, 
and  confined  to   cases  coming  within  the  technical   definitions  of 
those  oftences,  or  whether  it  is  used  as  a  compendious  expression 
to  denote  all  criminal  cases  of  every  description.     In  favor  of  the 
latter  opinion,  it  may  be  said,  first,  there  can  be  no  doubt,  that  the 
framers  of  these  constitutions  intended  to  secure  the  privilege  in 
question  upon  as  reasonable  and  intelligible  a  foundation,  as  it  ex- 
isted by  the  parliamentary  and  common  law  of  England  ;  in  short, 
that  as  in  a  multitude  of  other  cases,  they  intended  to  adopt,  with 
the  words,  the  full  meaning  which  had  been  given  to  them  by  usage 
and  authoritative  construction ;  and,  second,  that  the  word  felony, 
which  alone  gives  rise  to  any  doubt,  "  has  derived  so  many  mean- 
ings from  so  many  parts  of  the  common  law,  and  so  many  statutes 
in  England,  and  has  got  to  be  used  in  such  a  vast  number  of  dif- 
ferent senses,  that  it  is  now  impossible  to  know  precisely  in  what 
sense  we  are  to  understand  it ;  "  ^  and,  consequently,  that  unless  it 
is  allowed  to  have  such  a  signification,  as  vdth  the  other  words  of 
the  exception,  will  cover  the  whole  extent  of  criminal  matters,  it 
must  be  rejected  altogether  for  uncertainty,  or,  at  least,  restricted  to 
a  very  few  cases.     These  reasons,  alone,  though  others  might  be 
added,  are  sufficient  to  establish  the  point,  that  the  terms  "  treason, 
felony,  and  breach  of  the  peace,"  as  used  in  our  constitutions,  em- 
brace all  criminal  cases  and  proceedings  whatsoever.    In  the  federal 
government,  therefore,  and  in  the  States  above  referred  to,  the  priv- 
ilege of  exemption  from  legal  process  may  be  considered  the  same 
as  it  is  in  England. 

1  Dane's  Abridgment,  C.  200.  Art.  12. 


ClIAl'.  IL]  PERSONAL  PRIVILEGES.  231 

568.  This  is  the  form,  in  which  the  privilege  is  stated  in  all  the 
constitutions  except  those  above  excepted,  and  in  those  of  Massa- 
chusetts, New  Hampshire,  Connecticut,  and  Rhode  Island.  The 
constitutions  of  Pennsylvania  and  Kentucky,  extend  Ihe  exem|)tion 
to  "surely  of  the  peace,"  and  that  of  Maryland  to  "oiher  criminal 
offence."  The  constitutions  of  Indiana,  Michigan,  Wisconh;in,  and 
California,  after  stating  the  privih^ge  in  the  above-mentioned  form, 
add  also  that  no  member  shall  be  subject  to  any  civil  process,  dur- 
ing the  session  of  the  legislature  of  which  he  is  a  member,  nor,  in 
the  first-named  State,  for  fifteen  days  next  before  the  commence- 
ment, and  in  the  others,  for  fifteen  days  before  the  commencement, 
and  for  fifteen  days  after  the  termination,  of  the  session. 

569.  The  constitutions  of  New  Hampshire  and  Massachusetts 
provide,  that  no  member  shall  be  arrested  or  held  to  bail  on  mesne 
process,  during  the  sitting  of  the  legislature,  and  in  going  to  and 
returning  from  the  same;  by  the  constitution  of  Rhode  Island,  the 
privilege  protects  the  persons  of  members  from  arrest,  and  their 
estates  from  attachment,  in  any  civil  action,  and  by  that  of  Con- 
necticut members  are,  in  all  cases  of  civil  process,  privileged  from 
arrest. 

570.  The  constitution  of  South  Carolina  contains  a  similar  pro- 
vision, but  extending  the  protection  of  the  privilege  to  the  estates 
as  well  as  the  persons  of  members.  In  North  Carolina  and  Vir- 
ginia, there  is  a  like  provision  by  law,  embracing,  in  the  former 
State,  the  estates,  and  in  the  latter,  both  the  estates  and  th«  ser- 
vants, of  the  members.  In  Vermont,  there  is  no  express  provision 
on  the  subject  of  privilege ;  the  constitution  merely  declaring,  after 
an  enumeration  of  sundry  powers  conferred  upon  the  assembly,  that 
it  "  shall  have  all  the  other  powers  necessary  for  the  legislature  of 
a  free  and  sovereign  State."  The  constitutions  of  Connecticut, 
Pennsylvania,  Delaware,  Alabama,  Mississippi,  Tennessee,  Indiana, 
and  Iowa,  besides  what  is  said  therein  specifically  concerning  the 
exemption  of  members  from  legal  process,  contain  a  general  pro- 
vision that  each  house  shall  have  all  other  powers  necessary  for  a 
branch  of  the  legislature  of  a  free  and  independent  State.  The 
provision  in  the  constitution  of  Ohio,  is,  that  each  house  shall  have 
all  other  powers,  necessary  "to  provide  for  its  safety,  and  the 
undistm-bed  transaction  of  its  business."  Li  these  States,  therefore, 
the  privileges  of  members  may  be  considered  to  be  such  as  usually 
belong  to  legislative  assemblies,  by  the  common  law  of  parlia- 
ment. 


2S'4  LEGISLATIVE  ASSEMBLIES.  [PaET   III. 

571.  In  New  York,  it  is  provided  by  law,i  that  members  of  the 
legislature  shall  be  privileged  from  arrest  on  civil  process,  except 
when  issued  on  account  of  any  forfeiture,  misdemeanor,  or  breach 
of  trust,  in  any  office  or  place  of  public  tiaist,  held  by  any  person 
otherwise  entitled  to  privilege.  In  Maryland,  the  constitution  gives 
the  house  of  delegates  express  power  to  punish  by  imprisonment 
any  person  who  shall  be  guilty  of  a  breach  of  privilege  by  arresting 
a  member  oh  civil  process. 

572.  The  nature  of  the  preceding  investigation  has  been  such, 
and  it  has  unavoidably  been  extended  to  so  great  a  length,  that  it 
will  be  practically  useful  to  present  the  results  in  a  more  summary 
form.  The  privilege  of  exemption  from  legal  process,  as  estab- 
hshed  in  this  country,  by  constitutional  and  legal  provisions, 
[Appears  under  the  following  modifications. 

573.  I.  Exemptions  of  the  persons  of  members  from  arrest,  accord- 
ing to  the  common  parliamentanj  law  of  England,  as  stated  in  the 
preceding-  paragraphs.  In  this  form  the  privilege  exists  in  the  federal 
government,  and  in  the  States  of  Maine,  Pennsylvania,  Delaware, 
(^eorgia,  Kentucky,  Tennessee,  Ohio,  Indiana,  Louisiana,  Missis- 
sippi, Illinois,  Alabama,  Missouri,  Ai'kansas,  South  Carolina,  North 
Carofina,  Virginia,  Michigan,  Vermont,  New  Jersey,  New  York, 
(with  certain  exceptions,)  Maryland,  Connecticut,  Florida,  Texas, 
Iowa,  Wisconsin,  California,  and  Rhode  Island. 

574.  II.  Exemption  of  the  persons  of  members  from  being 
arrested  or  held  to  bail  on  mesne  process.  This  is  the  form  of  the 
privilege  as  estabfished  by  the  constitutions  of  Massachusetts  and 
New  Hampshire. 

575.  HI.  Exemption  of  the  estates  of  members  from  attachment. 
This  form  of  the  privilege  exists  in  Virginia,  North  CaroHna, 
South  Carolina,  Rhode  Island,  in  addition  to  the  other  privileges 
established  in  those  States. 

576.  IV.  Exemption  of  the  servants  of  members  from-  arrest. 
This  ancient  extension  of  the  privilege-  is  found  only  in  the  laws 
of  Virginia.  It  is  restricted  by  the  common  parliamentary  law,  to 
menial  servants  only,-  that  is,  those  who  are  necessarily  and  prop- 
erly employed  about  the  estates  or  persons  of  members/^  and  wiU 
not  protect  a  person  who  is  not  bona  fide  a  servant,  but  who  has 
obtained  the  situation  of  one  for  the  purpose  of  screening  his  per- 
son ;  ^  nor  will  it  protect  one,  who,  besides  being  a  menial  servant, 

1  Revised  Statutes,  I.  154.  *  Wilson's  Reports,  278. 

a  D'Ewes,  315,  655.  *  D'Ewes.  373. 


Chat.  IL]  personal  privileges.  233 

acts  also  in  some  additional  character,  as  tliat  of  an  attorney.^ 
The  rule  that  every  person  is  bound,  at  his  peril,  to  take  notice 
who  are  members,  returned  of  record,  does  not  apply  to  the  ser- 
vants of  members."'^ 

577.  V.  Exemption  from  civil  process  allo<f  ether.  This  provision 
is  found  only  in  the  constitutions  of  Rhode  Island  and  Alichigan ; 
the  former  declaring  all  process  served  contrary  to  Ihe  privilege 
therein  contained  to  be  void ;  and,  the  latter,  in  addition  to  freedom 
from  arrest,  declaring  that  members  shaU  not  be  subject  to  any 
civil  process. 

578.  VI.  It  has  been  seen,  that,  according  to  the  common  par- 
liamentary law,  the  officers  of  a  legislative  assembly,  necessarily 
attendant  thereon,  as  the  clerks,  sergeant-at-arms,  and  door-keeper, 
are  equally  privileged  with  the  members,'^  from  being  withdrawn  by 
legal  process,  from  the  performance  of  their  official  duties ;  and 
this  privilege  is  so  essential  to  the  very  existence  of  a  legislative 
assembly,  that  it  must  be  considered  as  a  necessary  incident  to  the 
establishment  of  such  a  body,  though  not  expressly  declared.  In 
Arkansas  and  New  York,  it  is  provided  by  law ;  *  but  in  the  latter 
State,  the  privilege  is  limited  to  the  time  of  the  actual  attendance 
of  the  officers  in  question. 

•  Article  IV.     Of  the  Duration  of  this  Privilege. 

579.  The  privilege  of  exemption  from  legal  process  being  intended 
to  enable  the  members  to  give  their  attendance  at  the  time  and 
place  appointed  for  then-  sitting,  and  to  remain  together  for  the 
purpose  of  performing  their  duties  as  members  ;  it  is  manifest,  that 
to  be  commensurate  with  the  purpose  for  which  it  was  intended, 
the  privilege  must  commence  a  sufficient  time  previous  to  the 
session  1o  enable  the  members  to  attend  in  season,  and  must  con- 
tinue all  the  time  of  the  sitting  of  the  assembly ;  and  for  the  same 
reason  which  prevails  in  other  cases  of  privilege,  it  ought  also  to 
contiime  for  such  a  time  after  the  termination  of  the  sitting,  as  to 
enable  the  members  to  return  to  their  homes. 

580.  In  England,  the  duration  of  this  privilege,  so  far  as  relates 
to  the  peers,  is  the  privilege  of  the  peerage,  and  perpetual ;  but 
as  to  members  of  the  house  of  commons,  in  reference  to  whom  it  is 

>  Strange's  Reports,  1065.  *  Revised   Statutes  of  Arkansas,   106 ;  Be- 

2  Fourth  Institute,  24.  vised  Statutes  of  New  York,  I.  154. 

»  Ante,  §  558. 

20* 


234  LEGISLATIVE    ASSEM^^LIES.  [PaRT   IIL 

not  a  private  right  but  a  parliamentary  privilege,  its  duration  is  not 
precisely  determined.  The  received  opinion  appears  to  be,i  that 
the  members  are  entitled  to  a  reasonable  time  to  enable  them  to 
attend  at  the  commencement  of  the  parliament; 2  to  forty  days 
after  each  prorogation  and  the  same  number  of  days  before  the 
next  appointed  meeting ;  ^  and  upon  a  dissolution,  to  a  reasonable 
time  for  returning  home.* 

581.  In  this  country,  the  duration  of  the  privilege  is  fixed  by  con- 
stitutional and  legal  provisions,  according  to  the  ckcumstances  and 
condition  of  each  particular  legislative  assembly.  In  aU,  the  privi- 
lege continues  during  each  session  of  the  assembly ;  but  as  to  the 
time  aUowed  for  going  and  returning,  different  regulations  pre- 
vail. 

582.  In  the  federal  government,  and  in  the  States  of  Mame, 
Massachusetts,  New  Hampshire,  Pennsylvania,  Delaware,  Ken- 
tucky, Tennessee,  Ohio,  Louisiana,  Illinois,  North  CaroHna,  Iowa, 
Vermont,  and  New  Jersey ,5  members  are  privileged  whilst  going 
and  returning  merely,  without  other  limitation  of  time.  Where  the 
duration  of  the  privilege  is  thus  stated,  members  are  entitled  to  a 
reasonable,  or  as  it  was  expressed  by  the  house  of  commons,  on 
one  occasion,'^  a  convenient  time,  for  going  and  returning;  thus, 
they  are  not  obliged  at  the  close  of  the  session,  to  set  out  imme- 
diately on  their  return  home,  but  may  take  a  reasonable  time  to 
settle  their  private  affairs,  and  prepare  for  the  journey ;  nor  will  the 
privilege  be  forfeited  by  reason  of  some  slight  deviation  from  the 
most  direct  road." 

583.  In  aU  the  other  States,  this  privilege  is  limited,  as  to  its 
duration,  to  a  certain  number  of  days  before  and  after  each  session, 
namely,  in  Rhode  Island,  to  two ;  Connecticut,  four ;  South  Caro- 
lina and  Georgia,  ten ;  New  York,  fourteen ;  Indiana,  (before  the 
session  only,)  Wisconsin,  California,  Missouri,  Arkansas,  and  Michi- 
gan, fifteen ;  in  Mississippi,  Alabama,  Florida,  Texas,  and  Virginia, 
to  one  day  for  every  twenty  miles  distance  from  the  place  of  sitting, 

1  See  May,  (3d  ed.,)  120-123.  Fortescue,   159;    PitVs    Case,    Strange,  985; 

2  In  Temi)le's  case,  Sergeant  Maynard  said.      Cases  Tempore  Hardwicke,  28. 

"  the  privilege  goeth  twenty  days  before  the  ^  In  the  first  of  these  two  States,  as  there  is 

session  of  the  parliament;  ad  quod  turn  fuit  no   constitutional   or  legal    provision    on  the 

Ttsponsum."  subject,  the  duration  of  the  privilege  is  stated 

»  Levinz's  Reports,  IL  72;  Atliol  v.  Derby,  as  above,  in    accordance  with  what  is   sup- 

Wellsby,  Hurlstone  &  Gordon,  I.  430 ;  May,  posed  to  be  the  common  law  of  privilege. 

118.  '  D'Ewes,  414. 

*  Dwarris,  1. 101;  Hammond,  7172.  See  also  ^  Strange,  II.  986;  Jefiferson's  Manual,  Sec. 

m. 


Chap.  IL]  personal  privileges.  235 

and  ill  Indiana  to  one  day  for  every  thirty  miles  distance  therefrom. 
Where  the  time  of  privilege  is  thus  regulated,  the  day  of  the  com- 
mencement or  close  of  the  session  must  be  excluded  from  the 
enumeration. 

584.  The  time  of  privilege  being  limited  to  the  duration  of  the 
session,  and  for  a  certain  period  previous  and  subsequent  thereto,  it 
is  important  to  determine  what  constitutes  a  session.  In  England, 
where  the  distinction  between  a  prorogation  and  an  adjournment  is 
practically  as  well  as  theoretically  recognized,  this  is  a  question  of 
no  difficulty ;  because,  it  is  there  held,  that  when  the  parliament  is 
prorogued,  the  session  is  terminated,  but,  that  when  an  adjourn- 
ment of  one  or  both  branches  takes  place,  the  session  is  contiimed  ; 
and  the  privileges  of  the  members  continue  during  an  adjournment, 
however  long  it  may  be.^  But,  in  this  country,  some  difficulty  may 
arise  in  determining  when  the  session  is  closed,  and  when  it  is 
merely  continued ;  inasmuch  as  the  same  term,  adjourmnent,  is  used 
almost  invariably  to  denote  both ;  and  the  question  must  therefore 
depend  upon  whether  the  session  is  in  fact  terminated  or  only  con- 
tinued by  the  proceeding  which  is  denominated  an  adjournment. 
Where  one  branch  only  adjourns  itself,  there  can  be  no  doubt,  that 
the  privilege  continues  dm-ing  the  time  of  the  adjournment.  Where 
both  branches  adjourn  at  the  same  time,  without  day,  or  to  the 
time  fixed  for  the  next  regular  session,  such  adjournment  is  clearly 
a  termination  of  the  session ;  but  where  this  is  not  the  case,  the 
question  can  only  be  determined  by  the  intention.^ 


Article  V.     Of  the  Manner  in  which  this  Privilege  is  to  be  taken 

advantage  of, 

585.  The  great  purpose  of  the  institution  of  privilege  being  to 
enable  the  members  of  a  legislative  assembly  to  give  their  attend- 
ance, as  such ;  when  one  is  illegally  arrested  or  detained,  it  is  his 
duty  to  take  immediate  and  effectual  measures  to  obtain  a  dis- 
charge ;  for  which  purpose,  the  proceedings  may  be  different  accord- 
ing as  the  privileging  tribunal,  or  the  arresting  tribunal,  or  neither 
of  them,  may  then  happen  to  be  in  session.     If  the  assembly  is  in 

1  Hatsell,  I.  162.    Mr.  Dwiiiris  (1. 102)quotes  immediutely  follow  the  passage  quoted  from 

Hakewell  as  saying,  that  privilege  does  not  con-  Hakewell,  show  that  by  tempore  vacationis,  he 

tinue  during  an  adjournment,  because  "  par-  meant  the  time  after  a  prorogation  and  not  aa 

liament    doth     not    give    privilege     iemjx>re  adjournment. 

vacationis,  sed  sedente  curia  only."     But  Mr.  "  Ante,  §  503. 
Dwarris  is   mistaken;    for  the  words  which 


236  LEGISLATIVE  ASSEMBLIES.  [PaRT  IIL 

session,  at  the  time  of  the  arrest  of  one  of  its  members,  he  may  be 
discharged  by  its  authority;  if  the  court  or  tribunal,  to  which  the 
process  is  returnable,  is  in  session,  he  may  be  discharged  by  the 
authority  of  such  tribunal ;  if  neither  is  in  session,  he  must  make 
his  application  to  some  other  court  or  authority,  invested  with  the 
cognizance  of  cases  of  illegal  restraint  of  the  person.  It  will  be 
proper,  therefore,  to  consider  of  the  proceedings  for  a  discharge,  first, 
by  the  assembly  itself;  second,  by  the  court  to  which  the  process 
is  returnable,  and,  third,  by  some  other  court  or  authority. 


I.    Of  Proceedings  by  the  Autlwrity  of  the  Assembly. 

586.  This  form  of  proceeding,  which  can  only  be  resorted  to 
when  the  assembly  is  in  session,  is  founded  in  the  general  principle, 
that  it  is  the  proper  function  of  every  court  or  tribunal  to  protect  its 
own  officers,  suitors,  and  attendants,  from  being  withdrawn  from 
tlieir  attendance  upon  it ;  and,  consequently,  that  the  arrest  of  any 
such  persons,  during  the  time  of  their  privilege,  is  a  contempt  of  the 
authority  of  the  court  by  which  they  are  privileged.^ 

587.  In  England,  various  methods  have  at  different  periods  been 
resorted  to  by  the  house  of  commons,  for  the  delivery  of  privileged 
persons  from  arrest.  One  mode  was  for  the  speaker  to  issue  his 
warrant  to  the  lord  chancellor,  for  a  wi'it  of  supersedeas  or  privilege ; 
another,  to  send  the  sergeant-at-arms,  with  the  mace  for  his  war- 
rant, to  deliver  the  person  arrested  and  bring  him  into  the  house ;  a 
third,  for  the  speaker,  by  direction  of  the  house,  to  issue  a  warrant 
to  the  clerk  of  the  crown  in  chancery,  for  a  writ  of  habeas  corpus 
directed  to  the  officer  having  the  privileged  person  in  custody,  to 
bring  him  with  the  cause  of  his  detention  forthwith  before  the  house, 
and  upon  the  return  of  the  writ  and  the  appearance  of  the  parties, 
for  the  house  to  discharge  the  prisoner,  if  entitled  to  privilege ;  a 
fourth  method,  which  was  much  in  use  during  the  reign  of  James 
I.  was  for  the  speaker  to  write  letters  to  the  several  courts  for  a  stay 
of  the  proceedings  in  cases  in  which  members  were  concerned ;  ^ 
but  this  course  was  not  always  effectual,  and,  on  one  occasion  in 
the  reign  of  Charles  I.  the  court  of  king's  bench  declared  that  it 
was  against  the  oaths  of  the  judges  to  stay  judgment  upon  such 
letters.^     The  course  adopted  in  modern  times  has  been  merely  to 

1  Term  Reports,  IV.  377.  150;  Noy,  83;  Prynne's  Fourth  Register,  810: 

«  See  Hatsell,  I.  185.  Hatsell,  L  184, 

»  Hodges  v.  Moore,  Latch's  Reports,  15,  48, 


.  Chap.  IL]  personal  privileges.  237 

make  an  order  for  the  discharge  of  the  person  arrested,  and  to  sig- 
nify the  same,  properly  authenticated  by  the  clerk,  to  the  officer 
having  the  privileged  person  in  custody.^ 

588.  Of  all  these  miDdes  of  proceeding,  the  only  one  which  can 
properly  be  adopted  at  the  present  day,  in  this  country,  is  the  last 
mentioned.  When  relief  is  sought  in  this  manner,  the  first  step  is 
to  inform  the  assembly  of  the  illegal  arrest ;  which  may  be  done 
either  by  a  petition  from  the  person  arrested,  or  by  a  statement  of 
his  case  by  one  of  the  members.  If  the  facts  appear  to  be  sufficient 
to  establish  the  right  of  the  party  to  privilege,  an  order  may  be 
made  at  once  to  discharge  him  from  the  arrest;  if  the  facts  are 
doubtful,  witnesses  may  first  be  heard  at  the  bar,  or  the  case  may 
be  referred  to  the  exammation  of  a  committee. 

589.  When  the  order  for  the  discharge  has  been  passed,  it  should 
be  properly  authenticated  by  the  clerk,  and  served  upon  the  officer 
having  the  custody  of  the  privileged  person.  If  the  officer  refuses  to 
obey  it,  he  may  be  proceeded  against  as  for  a  contempt ;  and  such 
other  measures  may  also  then  be  resorted  to  for  the  delivery  of  the 
person  privileged,  as  may  be  proper  for  that  purpose. 


II.     Of  Proceedings  by  the  Authority  of  the    Court  to  which  the 

Process  is  returnable. 

590.  This  form  of  proceeding  is  founded,  in  part,  on  the  princi- 
ple of  comity,  by  which  one  tribunal  recognizes  the  privileges  of 
another,  and,  partly,  on  the  principle,  that  the  privileges  of  members 
are  part  of  the  law  of  the  land,  of  which  it  is  the  duty  of  all  courts 
and  tribunals  to  take  official  notice. 

591.  Anciently,  when  relief  was  sought  in  this  manner,  it  was,  in 
general,  necessary  for  the  party  to  obtain  his  wTit  of  privilege  from 
the  court  or  tribunal  by  which  he  was  privileged,  and  to  plead  it  in 
the  court  by  whose  process  he  was  arrested.  In  the  case  of  attor- 
neys and  some  other  privileged  persons,  this  course  seems  to  have 
been  attended  with  little  or  no  difficulty,  the  writ  being  issued  by 
the  proper  officer,  as  a  matter  of  course ;  but  in  the  case  of  mem- 
bers of  the  house  of  commons,  who  obtained  their  WTiit  of  privilege 
from  the  lord  chancellor,  both  the  form  of  the  writ,  and  the  manner 
of  issuing  it,  seem  to  have  been  attended  with  so  much  difRculty 


>  Hatsell,  I    166,  167  n  ;  and  see  also  Petrie's  case,  Comm.  Jour.  LXI.  406,  423,  March 
20,  1793. 


238  LEGISLATIVE    ASSEMBLIES.  [PaRT  IIL 

and  uncertainty,  that,  in  Pitt's  case,  in  which  application  was  made 
to  the  chancellor  for  such  a  writ  in  favor  of  the  defendant,  the 
petition  was  withdrawn  at  the  suggestion  of  the  chancellor  him- 
self.i 

592.  This  mode  of  proceeding,  however,  so  far  as  relates  to 
members  of  parliament,  has  been  superseded,  in  more  modern  times, 
by  the  summary  course  of  a  motion  for  a  discharge  supported  by 
the  affidavit  of  the  party  in  custody.  This  was  first  sanctioned  by 
the  judgment  of  ten  of  the  tw^elve  judges  in  Pitt's  case,  above 
referred  to,  decided  in  the  twelfth  year  of  George  II. ;  and  it  has 
since  been  the  usual  form  of  proceeding,  for  the  delivery  of  a  privi- 
leged person  from  arrest,  both  in  England  and  in  this  country.^ 
Where  this  course  is  resorted  to,  the  person  arrested  makes  his 
affidavit,  setting  forth  all  the  facts  of  his  case ;  and,  thereupon, 
moves  to  be  discharged  from  arrest.  The  proceedings  being  similar 
in  all  respects,  to  what  take  place  upon  other  motions  grounded  on 
facts,  need  not  be  here  stated  at  length. 


III.     Of  Proceedings   by  the  Authority  of  some    other    competent 

Tribunal. 

593.  If  there  were  no  other  modes,  than  those  above  specified,  by 
which  a  privileged  person  could  be  discharged  from  arrest,  his 
privilege  might  often  prove  wholly  ineffectual ;  inasmuch  as  occa- 
sions may  occur,  for  taking  advantage  of  it,  when  neither  the 
assembly  itself,  nor  the  court  to  which  the  process  is  returnable,  is 
in  session.  In  all  such  cases,  application  may  be  made  to  that 
court  or  tribunal,  whatever  it  may  be,  which,  in  every  State  or 
country,  deriving  its  institutions  from  those  of  England,  is  author- 
ized to  grant  relief,  by  means  of  the  writ  of  habeas  corpus^  when 
the  personal  liberty  of  the  citizen  is  restrained.  Where  this  mode 
is  adopted,  the  proceedings  are  the  same,  of  course,  as  in  aU  other 
cases  of  habeas  corpus. 

594.  The  first  and  second  of  the  above-mentioned  modes  of  pro- 
ceeding can  only  be  adopted,  when  the  assembly  itself,  or  the 
arresting  tribunal,  is  in  session ;  but,  even  when  in  session,  their 
jurisdiction  is  not  exclusive.  Thus,  if  the  assembly  is  sitting,  at 
the  time  of  the  arrest  of  one  of  its  members,  he  may  apply  to  it  for 

1  Holliday  <f  others  v.  Pitt,  Strange,  II.  985 ;  Ecports,  I.  125 ;   Bolton  v.  Martin,  Dallas,  I. 

Fortescue's  Reports,  J  65;    Comyn's  Reports,  296;    Colvin  v.  Mm-gnn,  Johnson's   Cases,  I. 

444;  Cases  Tempore  Hard wicke,  25,  33.  415;  Lewis  \.  Elmcndorf,Sa.mii,  II.  IH;   Corey 

*  See  Barnard  v.  Mordaunt.  Lord  Kenyon's  v.  Russell,  Wendell's  Reports,  IV.  204. 


Chap.  II.]  personal  privileges.  239 

relief;  if  the  arresting  tribunal  is  also  sitting,  he  may  make  his 
application  there ;  and,  notwithstanding  he  may  have  it  in  his 
power  to  obtain  relief  by  either  of  these  modes,  he  may,  if  he 
chooses,  resort  to  some  other  tribunal  or  authority,  for  a  discharge 
on  habeas  corpus.  Neither  will  the  jurisdiction  of  any  one  of  these 
tribunals  be  taken  away  or  concluded  by  an  adverse  decision  of 
either  or  both  of  the  others ;  unless  it  be  in  the  case  of  a  decision 
of  the  assembly  itself,  that  the  person  claiming  privilege  is  not 
entitled  thereto  ;  so  that  if  the  arresting  tribunal  refuse  to  dis- 
charge, the  assembly  may,  notwithstanding,  set  its  member  at 
hberty,  or  he  may  be  relieved  by  habeas  corpus  from  some  other 
tribunal. 

595.  In  regard  to  the  evidence  necessary  to  be  produced  by  a 
person  entitled  to  privilege,  in  order  to  obtain  his  discharge,  it  is 
only  necessary  to  advert  to  that  part  of  it,  which  relates  to  the  mem- 
bership of  the  party,  on  which  his  claim  to  relief  is  founded.  In 
some  of  the  older  cases,  contained  in  the  English  books,  it  seems  to 
have  been  held,  that  in  the  case  of  members  of  the  house  of  com- 
mons, the  production  of  the  original  return  was  necessary,^  but  in 
several  subsequent  cases,  of  an  analogous  character,  the  affidavit 
of  the  party  appears  to  have  been  held  sufficient ;  -  and  in  the  few 
cases  that  have  occurred  in  this  country,  in  which  a  claim  of  dis- 
charge has  been  made  on  motion,  no  objection  seems  to  have  been 
made  to  the  sufficiency  of  the  proof  by  affidavit.^ 

596.  It  has  been  made  a  question,  whether  the  election  of  one 
under  arrest,  or  imprisonment,  for  a  cause  embraced  within  the 
privilege  of  exemption  from  legal  process,  vnW.  entitle  such  person 
to  be  discharged  as  a  member.  This  question  resolves  itself  into 
the  question  whether  an  arrest  for  any  cause,  other  than  treason, 
felony,  or  the  peace,  is  a  disqualification ;  for,  as  it  is  the  highest 
and  most  essential  prerogative  of  a  legislative  assembly  to  be  pos- 
sessed of  all  and  every  one  of  its  members,  it  is  idle  to  sav,  that  a 
person  is  eligible  as  a  member,  at  a  time,  when  he  neither  has 
power  by  law  to  attend,  nor  the  assembly  power  by  law  to  compel 
his  attendance.  Upon  the  hypothesis,  that  such  a  person  is  eligible 
to  election,  whilst  the  assembly  has  no  power  to  obtain  his  attend- 


1  See  Sir  Richard  Temple's  case;  Siderfin's  3  See  the  cases  collected  in  Harrison's  Di- 

Reports,  I.  192;  Keble's  Reports,  L  3;  BoUir-  gest,  Article  "  Arrest," 

day  V.  PiU,  Strange,  II.  990;   Fortescue's  Re-  ^  BoUmi  v.  Mnriin,  Dallas's  Reports,  L  296 

ports,    105;    Coniyn's    Reports,    444;     Cases  Colvin  v.  Morgan,  Johnson's   Cases,  I.  415; 

Temp.  Hani.  25,  33 ;  Fenwick  v.  Fenxoick,  Wm.  Leims  v.  Elmcndwf,  Same,  II.  222 ;    Corty  r. 

Blackstone's  Reports,  II.  788.  Russtll,  Wendell's  Reports,  IV.  204. 


240  LEGISLATIVE  ASSEMBLIES.  [PaRT   III. 

ance,  the  assembly  must  either  be  obliged  to  submit  to  an  infringe- 
ment of  its  prerogative,  or  be  compelled  to  set  aside  the  election, 
and  order  a  new  one  to  fill  the  vacancy ;  and  this  proceeding  would 
be  precisely  equivalent  to  a  disqualification.  The  only  alternative, 
therefore,  seems  to  be,  either  to  consider  an  arrest  on  civil  process 
as  a  disqualification,  or  to  hold  that  a  subsequent  election  entitles 
the  person  elected  to  his  discharge.  »The  inconvenience  and  dan- 
ger, which  would  result  from  the  establishment  of  the  former  prin- 
ciple, have  led  the  house  of  commons  in  England  to  adopt  the 
other  alternative,  and  with  but  a  single  exception,  for  more  than 
two  hundred  years,i  to  order  the  discharge  of  members,  who  were 
in  custody  before  and  at  the  time  of  their  election,  in  the  same 
manner,  as  if  the  arrest  had  taken  place  afterwards  ;2  and,  in  a 
recent  case,  the  same  principle  has  been  recognized  and  established 
by  a  decision  of  the  court  of  king's  bench.^  The  reasons  upon 
which  these  decisions  rest,  being  founded  in  the  principles  of  strict 
parliamentary  law,  are  equally  applicable,  and  would  probably  be 
recognized  and  applied  in  this  country,  as  well  as  in  England. 

597.  In  England,  as  has  abeady  been  seen,  the  returns  on  file  in 
the  crown  office,  being  altered,  amended,  or  taken  off  the  files, 
according  to  the  determination  of  the  house,  always  show  who  are 
members  entitled  to  privilege ;  but,  in  this  country,  as  it  is  not  the 
usage  in  aU  or  perhaps  any  of  the  States,  to  alter  or  amend  the 
returns,  this  principle  is  not  true  to  the  same  extent.  Before  the 
meeting  and  organization  of  the  assembly,  the  return  or  its  equiva- 
lent is  doubtless  the  best  evidence  of  membership,  because  it  is  the 
only  evidence  upon  which  one  is  allowed  to  assume  the  functions 
of  a  member ;  but,  after  that  time,  the  roll  or  list  of  the  assembly, 
or  a  certificate  from  the  clerk,  is  better;  and,  whenever  a  claim  of 
privilege  is  made,  it  wUl  be  expedient  for  the  party  to  be  prepared 
with  one  or  another  of  these  kinds  of  proof,  according  to  the  nature 

^  The  only  case,  that  I  have  met  with  in  »  Phillips  v.  Wellesley,  Dowling's  Practice 
my  investigation  of  this  question,  in  which  Cases,  I.  9;  Law  Journal,  IX.,  {King's  Bench,) 
the  house  of  commons  refused  to  order  the  6.  In  this  case,  which  was  decided  in  the 
discharge  of  a  member,  who  was  under  arrest,  King's  Bench,  Nov.  18,  1830,  Parke,  J.  refer- 
on  civif  process,  at  the  time  of  his  election,  is  ring  to  Burton's  case  in  which  he  was  coun- 
that  of  Filzherberi,  in  1592,  reported  by  Moor,  sel,  said,  that  "  on  searching  the  precedents 
840,  and  of  which  also,  D'Ewes  gives  a  full  of  the  house,  it  was  found,  that  a  person  in 
account  in  his  journal,  479.  custody,  though   after  final  judgment,   was 

2  See  Comm.  Jour.,  (March  25th  and  May  entitled  to  be  discharged,  on  being  elected  a 

5th,  1690,)  X.  856,  401,  411;  Same,  (10th  and  member.    The  speaker  issued   his  warrant, 

15th  Nov.  and  16th  Dec.  1707,)  XV.  396,  400,  and  Mr.  Burton  was  discharged ;  but  I  have  no 

466;  Same,  (6th  and  7th  July,  1807,)  LXn.  doubt,  that  he  was  entitled  to  be  dLscharged 

635,  636,  642,  644,  653 ;  and  the  precedents  by  this  court." 
*d4  observations  in  Hatsell's  first  volume. 


Chap.  IL]  pergonal  piiivileges.  241 

of  his  case,  and  to  the  time  when  he  finds  it  necessary  to  avail  him- 
self of  his  privilege.  It  will  be  sufficient,  however,  in  all  cases, 
when  the  assembly  has  been  once  organized,  to  prove,  that  the  per- 
son claiming  the  privilege  has  acted  in  the  capacity  of  a  mem- 
ber.^ 


Section  II.  —  Exemption  from  Service  as  Jurors  or  Witnesses. 

598.  The  privileges  of  exemption  from  serving  on  juries,  and  from 
attending  as  witnesses,  though  well  estabhshed  according  to  the 
common  parliamentary  law,^  are  mentioned  in  none  of  the  consti- 
tutions, and  in  but  few  of  the  laws  of  the  several  States.  Mr. 
JetTcrson  places  these  privileges  on  the  ground,  that  "  the  privilege 
from  arrest  privileges  of  course  against  all  process  the  disobedience 
to  which  is  punishable  by  an  attachment  of  the  person ;  as  a  sub- 
poena ad  respondendum,  or  testificandum,  or  a  summons  on  a  jury ; 
and  with  reason,  because  a  member  has  superior  duties  to  perform 
in  another  place."  ^  It  may  be  true,  perhaps,  as  a  general  principle, 
that  the  privilege  from  arrest  privileges  against  all  process,  the  dis- 
obedience to  which  is  punishable  by  an  attachment  of  the  person ; 
and  though  this  principle  may  relieve  the  party  from  all  restraint  of 
his  person,  yet  this  alone  is  not  enough  to  protect  one  against  other 
consequences,  resulting  from  non-attendance  as  a  juror  or  witness, 
as,  for  example,  the  imposition  of  a  fine  in  the  first  case,  or  the 
action  of  the  party  for  damages  in  the  second ;  and,  consequently, 
these  privileges,  in  order  to  be  effectual,  must  rest  upon  a  broader 
ground,  than  the  mere  exemption  from  process  ;  and  this  can  only 
be  found  in  the  general  principle  of  parliamentary  law,  by  which 
the  members  of  a  legislative  assembly  are  protected  from  all  the 
consequences  of  refusing  to  attend  as  witnesses  or  serve  as  jurors. 

599.  Serving  as  a  jujor  would,  in  general,  be  likely  to  withdraw 
a  member  from  his  attendance  as  such  for  a  considerable  length  of 
time ;  and  this  might  also  be  the  consequence,  in  some  instances, 
of  attending  as  a  witness ;  but,  frequently,  the  attendance  of  a 
member  may  be  dispensed  with  in  the  assembly,  without  detriment 
to  the  public  interest,  for  a  sufficient  length  of  time  to  enable  him 
to  give  his  testimony  as  a  witness.  It  is  consequently  the  practice 
in  such  cases,  for  members  to  obtain  leave  of  absence  for  the  pui- 

1  Greenleaf  on  Evidence,  I.  83,  92.  '  Manual,  Sec.  UL 

»Hatsell,  I.  112,   118,   171,  173;  D'Ewes, 
887;  Dwarris,  1. 108, 105. 

21 


2^12  LEGISLATIVE   ASSEMBLIES.  [PaHT    III 

pose  of  attending  elsewhere  as  witnesses  ;  ^  or  for  the  court,  in  which 
the  cause  is  pending,  to  request  by  letter  the  assembly  to  allow  the 
member  to  attend.-  So,  when  the  testimony  of  a  member  or  officer 
of  either  house  is  wanted  in  the  other,  leave  is  first  obtained  from 
the  house,  of  Avhich  such  person  ^  is  a  member.^ 

600.  The  duration  of  these  privileges  must  necessarily  be  the 
same,  in  each  State,  as  the  privilege  therein  against  legal  process ; 
and  the  same  modes  of  proceeding  may  be  adopted  in  taking  ad- 
vantage of  them,  with  a  view  to  relief  from  personal  restraint. 


Section  III.  —  Freedom  of  Debate  and  Proceeding. 

601.  Freedom  of  speech  and  debate  has  always  been  enjoyed  by 
the  members  of  both  houses  of  the  British  parliament ;  as  one  of 
their  most  ancient  and  necessary  rights  and  privileges,  and  entirely 
essential  to  the  free  and  independent  exercise  of  their  functions. 
This  privilege,  though  originally  intended  as  a  protection  against 
the  power  of  the  crown,  has  always  been  equally  effectual  to  protect 
the  members  against  the  attacks  of  their  fellow-subjects.  After 
many  controversies  between  the  two  houses  themselves,  or  one  of 
them  and  some  other  court  or  authority,  it  was  finally  settled  at  the 
revolution,  and  expressly  declared  by  the  bill  of  rights,  as  one  of  the 
fundamental  liberties  of  the  people,  that  "  the  freedom  of  speech 
and  debates,  and  proceedings  in  parliament,  ought  not  to  be  im- 
peached or  questioned,  in  any  court  or  place  out  of  parliament." 

602.  In  this  country,  this  privilege  has  been  expressly  declared 
by  constitution,  in  favor  of  the  members  of  all  our  legislative  assem- 
blies, except  those  of  Virginia,  North  Carolina,  South  Carolina, 
Mississippi,  Iowa,  Texas,  and  California,  in  substantially  the  same 
form  as  above  stated,  and  with  the  same  legal  effect ;  though,  in 
general,  somewhat  more  tersely  expressed,  the  language  being  for 
the  most  part,  that  "  for  any  speech  or  debate,  in  either  house, 
members  shall  not  be  questioned  in  any  other  place."  In  the  States 
above  mentioned,  there  does  not  appear  to  be  any  provision  of  con- 
stitution on  this  subject ;  but  the  constitutions  of  Mississippi  and 

1  J.  of  H.  29th  Cong.  1st  Sess.  767,  758,  759;  «  J.  of  S.  IV.  259;  J.  of  H.  14th  Cong.  1st 
J.  of  S.  20th  Cong.  1st  Sess.  50;  Reg.  of  Deb.  Sess.  637;  J.  of  S.  15th  Cong.  2d  Sess.  192, 
VIII.  Part  I.  802 ;  Cong.  Globe,  XV.  769.  195 ;  J.  of  H.  15th  Cong.  2d  Sess.  216 ;  J.  of  S. 

2  ^OM&ora  V.  i»/rtr«m,  Dallas's  Reports,  I.  296.      14th  Cong.    1st   Sess.   407,   410;    Same,   22d 
8  J.  of  H.  14th  Cong.  1st  Sess.  605;  J.  of  S.      Cong.  Ist  Sess.  370;  Reg.  of  Deb.  VIII.  Part 

16th  Cong.  2d  Sess.  192,  195;  J.  of  H.  15th      L  802. 
Cong.  2(1  Sess.  216 ;  J.  of  S.  14th  Cong.  1st 
Sess.  407. 


Chap.  IL]  personal  privileges.  243 

Iowa,  after  conferring  certain  specified  powers  and  privileges  upon 
the  houses  of  their  legislative  usr^emblies,  contain  a  general  grant  to 
them  of  all  other  necessary  powers;  and,  in  South  Carolina,  the 
existence  of  the  privilege,  as  a  constitutional  one,  is  only  to  be 
inferred  from  its  being  therein  made  a  punishable  offence  to  threaten 
harm  to  any  member,  for  any  thing  said  or  done  in  the  house  of 
which  he  is  a  member.  There  can  be  no  doubt,  however,  that 
according  to  the  principles  already  laid  down,i  the  privilege  of  free- 
dom of  speech  and  debate  exists  in  these  States  as  fully  and  effect- 
ually, as  if  it  had  been  expressly  provided. 

603.  The  privilege,  secured  by  this  constitutional  provision, 
though  of  a  personal  nature,  is  not  so  much  intended  to  protect  the 
members  against  prosecutions,  for  their  own  individual  advantage, 
as  to  support  the  rights  of  the  people,  by  enabhng  their  representa- 
tives to  execute  the  functions  of  their  office,  without  fear  either  of 
civil  or  criminal  prosecutions ;  and  therefore  it  ought  not  to  be 
construed  strictly,  and  confined  strictly  within  the  literal  meaning 
of  the  words  in  which  it  is  expressed,  but  to  receive  a  liberal  and 
broad  construction,  commensurate  with  the  design  for  which  it  is 
established.  It  is  accordingly  held,  that  this  privilege  secures  to 
every  member  an  immunity  from  prosecutions  for  any  thing  said  or 
done  by  him,  as  a  representative  of  the  people,  in  the  exercise  of 
the  functions  of  that  office ;  whether  such  exercise  is  regular  accord- 
ing to  the  rules  of  the  assembly,  or  irregular  and  against  their  rules ; 
whether  the  member  is  in  his  place  within  the  house,  delivering  an 
opinion, — uttering  a  speech, —  engaging  in  debate,  —  giving  his 
vote, — making  a  written  report— communicating  information  either 
to  the  house  or  to  a  member;  or,  whether  he  is  out  of  the  house, 
sitting  in  committee,  and  engaged  in  debating  or  voting  therein,  or 
in  drawing  up  a  report  to  be  submitted  to  the  assembly;  in  short, 
that  the  privilege  in  question  secures  the  members  of  a  legislative 
assembly  against  all  prosecutions,  whether  civil  or  criminal,  on 
account  of  any  thing  said  or  done  by  them,  during  the  session, 
resulting  from  the  nature  and  in  the  execution  of  their  office.  It  is 
hardly  necessary  to  add,  that  as  a  legislative  assembly  has  no  exist- 
ence or  authority,  as  such,  except  when  regularly  in  session,  the 
members  cannot  claim  this  privilege  for  any  thing  said  or  done  at 
any  other  time.  It  is  to  be  observed,  however,  that  mere  temporary 
adjournments,  for  the  convenience  of  the  members,  and  not  for  the 

».  Ante,  §  542,  643,  544,  545. 


244  LEGISLATIVE    ASSEMBLIES.  [PaRT    IIL 

purpose  of  putting  an  end  to  the  session,  are  in  fact  continuations 
and  not  terminations  of  it.^ 

604.  But  though  a  member  in  the  exercise  of  the  functions  of  his 
office  may  speak,  wTite,  or  vote,  in  any  manner  that  he  deems 
proper,  and  may  consequently  give  utterance,  with  impunity,  to  what 
would  subject  a  private  person  to  a  prosecution  for  hbel  or  slander ; 
yet  he  will  not  therefore  be  justified  in  printing  and  publishing 
what  he  has  spoken,  if  it  contains  matter  injurious  to  the  character 
of  an  individual ;  ^  not  even  if  the  publication  is  intended  to  correct 
a  misrepresentation  contained  in  a  report  of  his  speech  previously 
published  without  his  authority  or  sanction.^ 

Section  IV.    Privilege  of  Franking. 

605.  The  last  personal  privilege,  to  be  noticed,  is  that  of  send- 
ing and  receiving  letters  and  other  communications  of  a  similar 
nature,  through  the  public  post-office,  free  of  postage ;  a  privilege, 
which  has  been  enjoyed  by  members  of  parliament  in  England,  for 
many  years,  at  first  by  the  indulgence  of  the  crown,  but  now  by 
law.*  In  this  country,  the  franking  privilege  is  usually  conferred, 
by  law,  upon  the  members,  and  certain  of  the  officers,  of  both 
branches  of  the  congress  of  the  United  States,  upon  the  delegates 
of  territories  in  the  lower  branch,  and  upon  such  other  persons,  as 
congress  may  choose  to  compliment  in  that  manner;'^  that  body 
having  exclusive  jurisdiction,  by  the  constitution,  to  establish  post- 
offices  and  post-roads.  It  is  a  breach  of  privilege  to  counterfeit  or 
forge  a  frank.  When  a  member  or  officer  desires  to  make  use  of 
this  privilege,  he  writes  his  name  and  the  title  of  his  office  on  the 
back  of  the  letter,  over  the  superscription,  sometimes  with  the  addi- 
tion of  the  word  "  free." 

Section  V.    Personal  Disabilities  incident  to  Membership. 

606.  It  seems  proper,  by  way  of  supplement  to  the  subject  of 
the  personal  privileges  of  members,  to  take  some  notice  of  the  dis- 
abilities to  which  they  are  subjected  by  the  federal  and  by  many 

1  Appendix,  X.  lege.    The  franking  privilege  in  England,  it  is 

2  The  King  v.  Lord  Abingdon^  Espinasse's  believed,  has  lately  been  abolished  by  law, 
Reports,  226.  except  in  regard  to  sending  certain  parlia- 

3  The  King  v.  Creevy,  Maule  &   Selwyn's  mentary  papers  through  the  post-office  during 
Reports,  I.  273.  the  sitting  of  parliament.     See  May,  398. 

*  See  Dwarris,  1. 107,  and  Pari.  Hist.  XXIIL         ^  Gordon's  Digest,  section  990. 
66,  for  the  history  of  the  origin  of  this  privi- 


Chap.  IIL]  collective  privileges.  245 

of  the  State  constitutions,  as  a  consequence  of  their  official  char- 
acter. 

607.  The  constitution  of  the  United  States  provides,  that  no 
member  during  the  time  for  which  he  is  elected  shall  be  appointed 
to  any  civil  office,  under  the  authority  of  the  United  Slates,  which 
shall  have  been  created,  or  the  emoluments  of  which  shall  have  been 
increased,  during  such  time.  A  similar  provision  is  inserted  in  the 
constitutions  of  Pennsylvania,  Delaware,  New  Jersey,  and  Mary- 
land; and  also  in  those  of  Maine,  Virginia,  Alabama,  Indiana, 
Louisiana,  Kentucky,  and  Missouri,  with  the  addition  of  an  excep- 
tion of  such  offices  as  may  be  filled  by  elections  by  the  people.  In 
Kentucky  and  Louisiana,  Mississippi  and  Ohio,  the  same  disability 
is  extended  for  one  year  beyond  the  term  of  office.^ 


CHAPTER   THIRD. 

OF  THE   COLLECTIVE  OR  AGGREGATE  PRIVILEGES   OF  A  LEGISLA- 
TIVE ASSEMBLY. 

608.  Where  the  collective  privileges  of  a  legislative  assembly 
are  invaded,  the  means  of  enforcing  them  are  various,  according  to 
circumstances.  K  private  persons  are  the  offenders,  they  may  be 
punished  for  a  contempt ;  and  so  in  some  cases,  where  they  have 
an  official  character.  But  where  the  parties  concerned  are  beyond 
the  reach  of  the  assembly,  it  can  do  nothing  more  than  to  protest 
against  the  breach  of  privilege,  and,  also,  if  it  thinks  proper,  suspend 
all  its  own  functions,  until  the  cause  has  been  removed,  or  it  has 
received  satisfaction. 

609.  Where  the  breach  of  privilege  is  also  an  offence  against  the 
laws,  and  cognizable  by  the  ordinary  tribunals,  as  by  assaulting  a 
member,  or  libelling  the  assembly,  there  may  be  a  prosecution  at 

1  See  Ston''s  Commentaries  on  the  Consti-  genuotis  mind  to  afford  any  proof?,  that  the 

tution,  II.  !j  330,  331,332,  for  some  interesting  absence  of  such  a  disqualification  has  ren- 

and  judiciou?  observations  on  the  subject  of  dered  State  legislation  less  pure,  or  less  intel- 

these   disabilities  of  members.      The  author  ligent;   or  that  the  existence  of  such  a  dis- 

concludes  with  the  following  remark:  "The  qualification  would  have  retarded   one  rash 

history  of  our  State  governments,  (to  go  no  measure,  or  introduced  one  salutan,'  scrapie 

further)  will  scarcely  be  thought  by  anv  in-  into  the  elements  of  a  popular  or  party  strife." 

"21* 


246  LEGISLATIVE  ASSEMBLIES.  [PaRT   IIL 

law,  as  well  as  a  proceeding  and  punishment  by  the  assembly 
itself. 

610.  The  rights  and  immunities,  incident  to  or  conferred  upon  a 
legislative  assembly,  considered  as  an  aggregate  body,  are  founded 
in  the  same  general  reason,  upon  which  those  of  the  individual 
members  rest,  namely,  to  enable  the  assembly  to  perform  the  func- 
tions with  which  it  is  invested,  in  a  free,  intelligent,  and  impartia. 
manner. 

611.  The  privileges  of  this  kind,  which  belong  to  each  branch  of 
a  legislative  assembly,  may  be  classified  and  arranged  under  the 
following  heads,  namely  :  — 

1.  To  judge  of  the  returns,  elections,  and  qualifications  of  its 
members : 

2.  To  choose  its  own  officers  and  remove  them  at  pleasure : 

3.  To  establish  its  own  rules  of  proceeding: 

4.  To  have  the  attendance  and  service  of  its  members  : 

5.  To  be  secret  in  its  proceedings  and  debates : 

6.  To  preserve  its  own  honor,  dignity,  pm-ity,  and  efficiency,  by 
the  expulsion  of  an  unworthy,  or  the  discharge  of  an  incompetent, 
member : 

7.  To  protect  itself  and  its  members  fi-om  personal  violence : 

8.  To  protect  itself  and  its  members  firom  libellous  and  slander- 
ous attacks : 

9.  To  protect  itself  and  its  members  from  corruption : 

10.  To  require  information  touching  public  affairs,  from  the 
pubfic  officers : 

11.  To  require  the  opinion  of  the  judges  and  other  law-officers, 
on  important  occasions : 

12.  To  investigate,  by  the  testimony  of  witnesses  or  otherwise, 
any  subject  or  matter,  in  reference  to  which  it  has  power  to  act ; 
and,  consequently,  to  protect  parties,  witnesses,  and  counsel,  in 
their  attendance,  when  summoned,  or  having  occasion  to  attend  for 
that  purpose: 

13.  To  be  free  from  all  interference  of  the  other  coordinate 
branch,  and  of  the  executive  and  judiciary  departments,  in  its  pro- 
ceedings on  any  matter  depending  before  it. 

1,  2.     Elections;   Officers. 

612.  It  is  not  only  a  principle  of  parHamentary  law,  but  is 
declared  also  in  the  greater  number  of  our  constitutions,  that  every 
legislative  assembly  is  to  be  the  sole  and  exclusive  judge  of  the 


Chap.  III.]  collective  privileges.  247 

returns,  elections,  and  qualifications  of  its  own  members.  The 
same  thing  may  be  said  of  the  choice  and  removal  of  its  own 
officers.  These  subjects  have  already  been  sufficiently  treated  of 
elsewhere. 


3.    Rules  of  Proceeding. 

613.  In  addition  to  what  has  already  been  incidentally  stated 
concerning  the  rules  of  proceeding  which  are  in  use  in  our  legisla- 
tive assemblies,  it  may  be  remarked  here,  that,  in  all  the  American 
constitutions,  except  those  of  North  Carolina  and  Georgia,  it  is 
expressly  provided,  that  each  assembly  shall  determine  the  rules  of 
its  proceeding.  Two  important  difierences,  between  the  two 
houses  of  the  British  parliament,  and  our  legislative  assemblies,  in 
respect  to  the  rules  by  which  they  are  respectively  governed,  seem 
to  result  from  the  establishment  of  this  principle.  The  fii'st  is,  that 
the  system  of  standing  orders,  by  which  one  house  of  parliament 
binds  its  successors,  does  not  prevail  here  at  all.  The  other  is,  that 
each  assembly,  until  it  adopts  rules  and  orders  for  itself,  (and  it 
usually  adopts  those  of  its  predecessors,)  is  without  any  other  rules 
for  its  government,  than  those  which  result  from  the  common  par- 
liamentary law.^ 

614.  The  principle,  that  each  branch  of  a  legislative  assembly 
has  a  right  to  determine  its  own  rules,  is  deemed  so  important  that 
where  it  is  inserted  in  the  constitution  of  a  State,  it  has  been 
doubted,  whether  it  was  competent  for  the  legislature  of  such  State, 
by  law,  to  provide  rules  for  the  government  of  its  respective 
branches,  which  should  bind  them  and  supersede  their  authority  to 
make  rules  for  themselves.^ 

4.    Attendance  and  Service  of  its  Members. 

615.  This  subject,  so  far  as  relates  to  the  right  and  duty  of 
members  to  attend,  has  been  already  considered ;  and  it  has  been 
seen,  that  members  are  privileged,  to  a  certain  extent,  against  all 
detentions  by  means  of  legal  process,  by  which  they  would  be  with- 
drawn from  the  performance  of  their  duty  in  this  respect.  But  this 
personal  privilege  is  subordinate  to  that  of  the  assembly  itself;  it 
cannot  be  waived  without  the  consent  of  the  assembly ;  and,  when 
a  member  is  improperly  detained,  not  only  may  he  himself  insist 

1  The  subject  of  rules  and  orders  is  treated      "  Cong.  Globe,  XXI.  1372,  1373. 
of  at  length  in  the  fourth  part. 


248  LEGISLATIVE    ASSEMBLIES.  [PaRT    III. 

upon  his  prhdlege,  but  the  assembly  of  which  he  is  a  member  may 
send  for  and  set  him  at  liberty,  by  its  own  officers,  and  may  also 
punish  as  for  a  contempt  all  persons  privy  to  or  engaged  in  such 
detention. 

616.  It  seems  formerly  in  England  to  have  been  considered  the 
privilege  of  the  houses  of  lords  and  commons,  to  be  previously 
informed  of  the  case  of  a  member,  about  to  be  arrested  for  a  cause 
to  which  his  privilege  did  not  extend,  before  the  arrest  took  place, 
in  order  that  the  house  might  judge  of  the  fact  and  of  the  grounds 
of  the  accusation,  and  how  far  the  manner  of  the  trial  might  con- 
cern their  privileges ;  for  the  reason,  that  otherwise  "  it  would  be 
in  the  power  of  other  branches  of  the  government,  and  even  of 
every  ^private  man,  under  pretences  of  treason,  etc.,  to  take  any  man 
from  his  service  in  the  house,  and  so  as  many,  one  after  another,  as 
would  make  the  house  what  he  pleased ;  "  ^  and  the  propriety  of  this 
manner  of  proceeding  has  been  repeatedly  recognized  by  the 
several  temporary  statutes  for  suspending  the  habeas  corpus  act; 
by  which  it  is  provided  that  no  member  of  either  house  shall  be 
detained,  until  the  matter  of  which  he  stands  suspected  shall  have 
been  first  communicated  to  the  house  of  which  he  is  a  member,  and 
the  consent  thereof  obtained  for  his  commitment  or  detention.^ 

617.  But,  since  the  revolution,  however,  whenever  the  king  or 
any  of  his  ministers,  or  persons  employed  by  him,  finds  it  necessary 
for  the  public  service  to  put  a  member  of  the  house  of  commons 
under  arrest ;  or  that  in  any  public  inquiry,  matter  comes  out, 
which  may  tend  to  affect  the  person  of  a  member,  or  to  require  the 
seizure  of  his  papers  ;  it  has  been  the  uniform  practice  immediately 
to  acquaint  the  house  of  commons,  that  they  may  know  the  reasons 
for  such  proceeding,  and  take  such  steps  as  they  may  think  proper ; 
and  Hatsell  adds,  that  as  there  is  no  privilege,  of  which  the  house 
of  commons  has  been  or  ought  to  be  more  jealous,  than  the 
security  of  the  persons  of  the  members,  "  that  they  shall  be  under 
no  undue  restraint  from  being  able  to  attend  their  duty  in  parlia- 
ment," it  is  highly  expedient,  that  whenever  the  public  necessity 
appears  to  the  ministers  of  the  crown  to  justify  any  breach  of  this 
privilege,  they  should  as  soon  as  possible  acquaint  the  house  with 
the  steps  they  have  taken,  and  the  grounds  and  reasons  which 
induced  them  thereto.^ 

618.  From  the  uniform  practice  to  the  contrary,  it  appears  that 

1  Jefferson's  Manual,  §  3.  «  Hatsell,  II.  365. 

^Dwarris,  1,  9,  8;    Blackstone's  Comm.  I. 
167 ;  Hammond,  72. 


Chap.  III.]  collective  privileges.  249 

the  house  of  commons  has  not  for  a  long  course  of  years  insisted 
upon  being  notified  of  the  case  prior  to  the  arrest ;  and,  probably, 
at  the  present  day,  nothing  more  than  a  simultaneous  or  imme- 
diately subsequent  communication  w^ould  be  held  requisite.  This 
course  of  proceeding,  though  extremely  proper,  has  not,  it  is 
believed,  been  considered  necessary  in  this  country. 

619.  The  exceptions  to  the  privilege  from  arrest  being  of  such  a 
nature,  that  a  member,  if  guilty,  would  be  unworthy  to  continue 
such,  a  very  proper  course  of  proceeding  on  the  part  of  the  assem- 
bly, in  the  case  above  supposed,  would  be  to  institute  an  inciuiry 
into  the  cause  of  the  arrest  or  detention,  and  either  to  take  meas- 
ures to  procure  his  discharge  therefrom,  or  to  expel  him,  according 
to  the  circumstances  of  the  case.  In  this  way,  the  rights  of  the 
assembly  itself,  and  of  the  constituents  of  the  member,  might  both 
be  preserved,  and  the  course  of  public  justice  subserved,  at  the 
same  time. 

620.  When  any  of  the  members  of  a  legislative  assembly  are 
improperly  arrested,  and  detained  by  force,  or  otherwise,  against  the 
rights  and  privileges  of  the  assembly,  and  in  such  a  manner  that 
neither  they  themselves,  nor  the  assembly,  can  effect  their  dis- 
charge, the  only  course  for  the  assembly  to  pursue  is  to  suspend  all 
businet^s  until  they  are  restored ;  and  this  has  been  frequently  done 
by  the  house  of  commons,  in  England,  when  its  members  have  been 
detained,  and  before  the  revolution  in  this  country,  in  analogous 
rases,  by  the  colonial  or  provincial  legislatures. 

»>2 1 .  If  a  member  absents  himself,  without  leave,  or  continues  his 
absence,  after  his  leave  has  expired,  he  may  be  brought  in  by  the 
sergeant-at-arms,  by  order  of  the  house,  and  compelled  to  give  his 
attendance ;  and  if  contumacious,  he  may  be  expelled,  and  give 
place  to  a  successor,  who  better  understands,  and  is  more  willing 
to  do,  his  duty. 

622.  Cases  may  happen,  however,  in  which  a  member  is  pre- 
vented from  giving  his  attendance  for  causes  not  within  his  own 
power,  and  for  which  he  cannot  be  held  responsible,  as  sickness,  of 
body  or  mind,  or  domestic  or  other  calamity,  which  withdraws  him 
from  his  attendance.  In  such  cases  the  ignominious  proceeding  of 
expulsion  ought  not  to  be  resorted  to,  but  yet  the  assembly  ought 
to  have  the  services  of  all  its  members ;  and,  therefore,  a  proper 
course,  where  the  member  might  not  think  proper  to  resign,  would 
be  to  discharge  him  from  his  membership,  or  to  declare  his  seat 
vacant,  and  order  a  new  election.^ 

I  Post,  §  625. 


250  LEGISLATIVE  ASSEMBLIES.  [PaRT   III 

5.  Secrecy  of  Debates  and  Proceedings 

623.  This  subject  has  akeady  been  considered,  in  the  greater 
part,  under  the  head  of  proceeding  with  open  or  closed  doors ;  ^ 
and,  for  the  same  reason,  that,  according  to  the  theory  of  legislative 
assemblies,  it  is  one  of  their  essential  privileges  to  be  secret  in  their 
proceedings  and  debates,  and,  therefore,  to  exclude  all  strangers 
from  witnessing  them,  no  person,  whether  a  member  or  other  person 
accidentally  or  otherwise  present,  or  any  of  its  officers  or  servants, 
is  allowed  to  promulgate  or  publish  what  is  said  and  done,  either 
by  speaking,  writing,  or  printing  the  same,  without  the  leave  of  the 
assembly. 

624.  But  this  prohibition  to  publish  any  account  of  the  proceed- 
ings of  a  legislative  assembly,  without  previously  obtaining  its 
permission,  though  still  existing  potentially,  as  it  did  actually,  from 
time  out  of  mind,  until  about  the  middle  of  the  last  century,  is  now 
practically  abandoned  in  England,  the  reporters  for  daily  journals 
being  allowed  places,  by  the  indulgence  of  the  presiding  officers,  for 
the  exercise  of  then-  functions.  In  this  country,  if  this  restraint  can 
be  said  ever  to  have  had  any  existence  in  fact,  (though  in  theory, 
the  right  to  conduct  their  proceedings,  in  secret,  evidently  includes 
a  right  to  restrain  any  one  from  publishing  them,)  it  is  certainly 
abandoned  in  theory,  as  well  as  in  fact,  in  those  States  where  the 
proceedings  are  required  to  be  in  public,  except  on  occasions  when 
secrecy  is  requisite.  In  all  the  other  States,  it  seems  to  have  been 
practically  abandoned.  The  senate  of  the  United  States,  which, 
besides  being  one  branch  of  congress,  is  also  an  executive  council, 
has  never  conducted  its  proceedings  in  the  latter  capacity  with  open 
doors.'-^  It  must  be  competent,  however,  to  every  legislative  assem- 
bly to  enjoin  secrecy,  upon  its  members  and  officers,  as  well  as  others, 
either  in  respect  to  a  particular  matter,  or  to  its  proceedings  gener- 
ally ;  and  any  breach  of  its  injunction  in  this  respect,  or  any  invasion 
of  its  right  of  secrecy  wiU,  of  course,  be  punishable  as  a  contempt.^ 

6.  Expulsion  or  Discharge  of  a  Member. 

625.  The  power  to  expel  a  member  is  naturally  and  even  neces- 
sarily incidental  to  all  aggregate,  and  especially  all  legislative 
bodies  j"^  which,  without  such  power,  could  not  exist  honorably,  and 

1  Ante  4  344  to  353.  the  case  of  Mr.  Senator  Smith,  of  Ohio,  against 

2  Ante  §  343.  whom  a  resolution  of  expulsion  was  reported, 

3  See  the  case  of  Mr.  Senator  Pickering,  of  for  his  participation  in  Burr's  conspiracy,  by 
Massachusetts,  J.  of  S.  IV.  530.  a  committee,  of  which  Mr.  John  Quincy  Ad- 

*  Male,  44.     See,  in  the  fourth  volume  of  the      ams  was  chairman. 
Jourxais  of  the  Senate  of  the  United  States, 


Chap.  IIL]  collective  privileges,  251 

fulfil  the  object  of  their  creation.  In  England,  this  power  is  sanc- 
tioned by  continued  usage,  which,  in  part,  constitutes  the  law  of 
parliament.  It  is  in  its  very  nature  discretionary,  that  is,  it  is  im- 
possible to  specify  beforehand  all  the  causes,  for  which  a  member 
ought  to  be  expelled ;  and,  therefore,  in  the  exercise  of  this  power, 
in  each  particular  case,  a  legislative  body  should  be  governed  by  the 
strictest  justice  ;  for  if  the  violence  of  party  should  be  let  loose  upon 
an  obnoxious  member,  and  a  representative  of  the  people  discharged 
of  the  trust  conferred  upon  him  by  his  constituents,  without  good 
cause,  a  power  of  control  would  thus  be  assumed  by  the  representa- 
tive body  over  the  constituent,  whoUy  inconsistent  with  the  free- 
dom of  election.^ 

626.  The  power  to  expel  also  includes  in  it  a  power  to  discharge 
a  member,  for  good  cause,  without  inflicting  upon  him  the  censure 
and  disgrace  implied  in  the  term  expulsion ;  and  this  has  accord- 
ingly been  done,  in  some  instances,  by  the  house  of  commons.^ 

627.  Analogous  to  the  right  of  expulsion,  is  that  of  suspending 
a  member  from  the  exercise  of  his  functions  as  such,  for  a  longer  or 
shorter  period ;  which  is  a  sentence  of  a  milder  character  than  the 
^ormer,  though  attended  with  somewhat  different  effects ;  for  during 
the  suspension,  the  electors  are  deprived  of  the  services  of  their 
representative,  without  power  to  supply  his  place ;  but  the  rights  of 
the  electors  are  no  more  infringed  by  this  proceeding,  than  by  an 
exercise  of  the  power  to  imprison.^ 

7.   Protection  against  Personal  Violence. 

» 

628.  AH  attacks  upon  the  persons  of  the  members,  or  officers,  of 
a  legislative  assembly,  or  others  attending  and  privileged,  as  wit- 
nesses and  parties,  whether  by  actual  violence,  or  by  threats,  and 
all  disorders,  in,  near,  or  about  the  place  of  sitting,  have  been 
always  deemed  high  breaches  of  privilege  and  punishable  accord- 
ingly- 

8.   Protection  against  Slanderous  and  Libellous  Attacks. 

629.  No  form  of  attack,  upon  the  rights  and  privileges  of  a  legis- 
lative assembly,  has  been  more  common,  or  subjected  offenders  to 
a  severer  punishment,  than  this.  When  the  libel  is  on  the  assem- 
bly itself,  there  can  be  but  little  doubt  of  its  authority  to  punish  the 

»  Male,  44.  s  Comm.  Jour.   IT.  128;    Same,  VITL  280; 

«  Male,  44.  Same,  IX.  105;  Same,  X.  846;  May,  65. 


252  LEGISLATIVE   ASSEMBLIES.  [PaRT   IIL 

offender ;  but,  when  it  is  committed  against  a  member,  it  can 
hardly  be  considered  a  breach  of  privilege,  unless  it  attack  him  in 
that  capacity,  or  on  account  of  something  said  or  done  by  him  as  a 
member.^ 


9.   Protection  against  Corruption, 

630.  Bribery  or  attempts  to  bribe,  or  otherwise  improperly  influ- 
ence or  corrupt  members  or  officers,^  are  high  breaches  of  privilege 
and  punishable  accordingly.  So  it  is  an  offence  to  suborn  or  tam- 
per with  witnesses  attending.^ 

10.   Right  to  be  informed  by  Public  Officers. 

631.  In  England,  it  has  always  been  deemed  the  right  of  both 
houses  of  parliament,  (and  this  right,  it  is  believed,  is  incidental  to 
every  legislative  assembly,)  to  call  on  the  officers  connected  with 
other  branches  or  departments  of  the  government  for  information 
touching  public  affairs,  sometimes  by  a  direct  application,  and 
sometimes  through  the  head  of  the  executive  department. 

632.  In  some  of  the  States,  it  is  expressly  provided  by  constitu- 
tion, and,  in  all  of  them,  it  is  understood  to  be  the  duty  of  the  chief 
executive  officer,  that  the  latter  shall  give  information  of  the  state 
of  pubhc  affairs  to  the  legislature,  on  their  assembling  and  organiza- 
tion, and  from  time  to  time  afterwards,  as  may  be  deemed  proper ; 
and,  though  this  leaves  it  in  some  degree  discretionary  with  the 
executive,  as  to  the  time,  manner,  and  extent  of  the  communication, 
yet  it  is  the  constant  practice  in  all  our  legislative  assemblies  to 
ask  for,  and  for  the  executive  to  communicate,  information  touching 
the  public  affairs,  at  any  time,  during  the  session  of  the  assem- 
bhes.  When  a  communication  is  made  by  the  executive,  without 
being  called  for  by  either  branch,  it  is  usually  addressed  to  both ; 
though,  when  the  subject  of  it  relates  particularly  to  the  functions 
of  one,  it  may  be  addressed  to  that  one  alone  ;  but  it  is  the  right  of 
either,  without  the  concurrence  of  the  other,  to  request  information. 

1  For  a  case  of  the  first  description,  see  the  *  See  the  case  of  Whitney  and  Randall,  J. 

proceedings  in  the  case  of  William  Dunne  in  of  H.  IT.  389;  and  that  o^  John  Anderson,  3.  of 

the  senate  of  the  United  States,  J.  of  S.  IIL  H.  15th  Cong.  1st  Sess.  117. 

87 ;  Jefferson's  Manual,  Sec.  III. ;  see  also  J.  '  See  the  case  of  William  Williams,  in  the 

of  S.  29th  Cong.  1st  Sess.  191;  Cong.  Globe,  proceedings   concerning  the   conduct  of  the 

XV.  625 ;  and  for  the  case  of  a  libellous  attack  Duke  of  York,  Hans.  (1),  XII.  460. 
upon  an  individual  member,  see  Cong.  Globe, 
XV.  457,  458 


Chap.  III.]  collective  privileges.  253 

In  a  few  of  the  States,  there  is  a  provision  of  the  constitution  con- 
ferring upon  the  governor,  for  this  purpose,  among  others,  the  right 
to  require  information  of  the  officers  of  the  executive  department 
upon  any  subject  relating  to  the  duties  of  their  respective  offices. 


11.    Rig-ht  to  require  Opinions  of  the  Judges. 

633.  In  England,  the  judges  of  the  superior  courts  are  technically 
considered  as  assistants  in  the  house  of  lords,  and  are  summoned 
to  attend  as  such.  In  this  country,  the  right  to  call  upon  the  supe- 
rior courts,  for  their  opinions  on  important  questions  of  law,  and  on 
solemn  occasions,  is  conferred  upon  the  legislative  bodies,  by  ex- 
press constitutional  provision,  only  in  the  States  of  New  Hamp- 
shire, Maine,  and  Massachusetts.^  In  the  other  States,  where  there 
is  no  such  constitutional  provision,  the  right  cannot  be  considered 
to  exist. 

12.   Right  of  Investigation. 

634.  It  has  always,  at  least  practically,  been  considered  to  be 
the  right  of  legislative  assemblies,  to  call  upon  and  examine  aU 
persons  within  their  jurisdiction,  as  witnesses,  in  regard  to  subjects, 
in  reference  to  which  they  have  power  to  act,  and  into  which  they 
have  already  instituted,  or  are  about  to  institute  an  investigation. 
Hence  they  are  authorized  to  summon  and  compel  the  attendance 
of  all  persons,  within  the  limits  of  their  constituency,  as  witnesses, 
and  to  bring  with  them  papers  and  records,  in  the  same  manner,  as  is 
practised  by  courts  of  law.  "When  an  assembly  proceeds  by  means 
of  a  committee,  in  the  investigation  of  any  subject,  the  committee 
may  be,  and  usually  is,  authorized  by  the  assembly  to  send  for 
persons,  papers,  and  records.^ 

635.  Witnesses  before  a  legislative  assembly,  or  a  committee, 
are  not  sworn,  unless  there  is  some  express  provision  of  law  or  con- 
stitution, authorizing  their  examination  in  that  manner ;  but  they 
give  their  testimony  under  the  penalty  of  being  adjudged  guilty  of 
a  contempt,  and  punished  accordingly,  if  they  prevaricate,  or  testify 
falsely. 

*  These  opinions,  although  given  upon  the  vided  that  the  house  of  delegates  raav  inquire, 
arguments  of  persons  interested,  which,  of  on  the  oath  of  witnesses,  into  all  complaints, 
course,  must  be  voluntary,  are  not  considered  grievances,  and  offences,  as  the  grand  inquest 
by  the  court  as  binding  precedents  in  actions  of  the  State,  and  may  commit  any  person  for 
subsequently  arising.  Adarnsv.  Bucklin,  Pick-  any  crime  to  the  public  jail,  tliere  to  remain 
ering's  Reports,  VII.  125.  until  discharged  by  due  course  of  law. 

•  In  the  constitution  of  Maryland  it  is  pro- 

22 


c 


54  LEGISLATIVE  ASSEMBLIES.  [PaRT   HI. 


636.  The  right  of  investigation  implies  that  of  hearing  parties 
and  their  counsel,  as  weU  as  witnesses ;  and,  consequently,  the 
house  of  commons  in  England  has,  from  the  earliest  times,  exer- 
cised the  right  of  giving  the  protection  and  privilege  of  the  house 
to  the  several  persons  who  have  been  ordered  to  attend  the  house 
or  committees,  or  who,  either  on  public  or  private  concerns,  were 
attending  the  service  or  business  of  the  house ;  and  in  many  of 
such  cases,  the  house  has  given  orders,  that  such  persons,  having 
been  arrested  by  process  from  the  courts  of  law,  should  be  delivered 
out  of  custody.! 

637.  There  are  precedents  for  the  granting  of  this  protection  to 
persons  attending  to  prefer  or  prosecute  a  private  bill,^  or  as  the 
solicitor  of  a  party ,3  to  prosecute  a  petition,'^  to  claim  a  seat  as  a 
member,^  or  to  attend  an  election  committee,"^  summoned  to  tes- 
tify as  a  witness,  either  before  the  house,  or  a  committee.^ 

638.  In  all  cases  of  the  above  description,  if  the  person  privi- 
leged is  arrested,  he  is  to  be  discharged  in  the  same  manner,  and 
by  the  same  proceeding,  as  in  the  case  of  members ;  if  not  yet 
arrested,  but  only  in  danger,  he  may  give  information  thereof  to 
the  assembly,  and  thereupon  an  order  will  be  passed,  that  the  pro- 
tection of  the  assembly  be  allowed  to  such  person,  during  the 
pendency  of  the  matter  or  business  which  entitles  him  to  privilege. 
This  order  is  equivalent  to  the  writ  of  privilege,  granted  to  parties, 
witnesses,  etc.,  by  the  ordinary  tribunals.  It  does  not  seem  to  be 
necessary  in  the  case  of  members,  whose  official  character  is  sup- 
posed to  be  known  to  everybody  (all  persons  being  bound  to  take 
notice  of  who  are  members  returned  of  record) ; '  but,  in  the  case  of 
other  persons,  it  may  be  of  utility  in  preventing  an  arrest,  or  in 
rendering  the  officer  making  it  liable  to  an  action.^ 


13.     Freedom  from  Interference. 

639.  It  has  been  already  seen  with  how  much  care  the  parlia- 
mentary law  has  guarded  against  all  interference  in  the  proceedings 
of  a  legislative  assembly,  on  the  part  of  private  persons.  The  same 
jealous  watchfulness  is  also  manifested  to  protect  them  from  all 

1  Coram.  Jonr.  XLVIII.  424.  «  Coram.  Jour.  L   863;    Same,  VIH.  525; 

2  Comm.  Jour.  L  766,  702,  921,  924.  Same,  IX.  20,  366;  Same,   XII.  304. 
8  Comm.  Jour.  IX.  472;    Same,  XXIV.  170.         '  Ante,  §  554. 

<  Comm.  Jour.  II.  72.  *  See  McNeil's   Case,  Mass.   Rep.  HI.  288, 

6  Comm.  Jour.  XXXIX.  83;  Same,  XLVIII.     and  Same,  VI.  264,  as  to  the  effect  of  a  writ 

426.  of  privilege.    See  also  Comm.  Jour.  XLVIII 

406,  423. 


Chap.  IV.]  incidental  powers.  255 

influence  of  one  another,  or  of  other  coordinate  departments  of  the 
government.  In  England,  accordingly,  it  is  held  to  be  a  hii.'h 
breach  of  privilege,  for  the  king  to  interfere  in  or  take  notice  of  any 
proceeding  in  either  branch,  except  in  such  manner  as  he  is  con 
stitutionally  authorized  to  do  ;  and  it  is  also  a  high  breach  of 
privilege  for  either  branch  to  interfere,  in  any  other  than  the  regular 
and  constitutional  manner,  in  the  proceedings  of  the  other;  though 
either  house,  when  sending  a  bill  to  the  other,  may  signify  its  wish 
to  have  it  attended  to,  and  may,  in  the  course  of  business,  send  to 
the  other  for  information  in  regard  to  the  state  of  any  bill  or  other 
matter,  in  which  it  has  a  common  concern.  The  same  principles 
prevail  here,  both  as  regards  the  executive,  and  both  branches  of 
the  legislature. 


CHAPTER    FOURTH. 

OF   THE   INCIDENTAL  POWERS   OF  A   LEGISLATIVE   ASSEMBLY. 

640.  The  powers  incidental  to  a  legislative  assembly,  like  the 
rights  and  immunities,  which,  under  the  name  of  privileges,  have 
been  considered,  are  such  only  as  are  necessary  to  enable  it  to 
perform  its  principal  or  legislative  and  administrative  functions. 
These  powers  are  of  two  kinds,  the  inquisitorial  and  the  judicial. 

641.  A  legislative  assembly  being  authorized,  in  the  exercise  of 
its  constitutional  functions,  both  administrative  and  legislative,  to 
institute  inquiries  into  all  grievances  of  the  citizen,  which  are 
remediable  by  legislative  enactment,  and  into  all  abuses  of  power 
by  persons  in  office,  with  a  view  either  to  their  removal  by  address, 
or  to  their  punishment  by  impeachment,  it  has  a  power  to  investi- 
gate all  such  subjects,  by  the  examination  of  witnesses,  or  other- 
wise, in  the  same  manner,  as  is  practised  by  grand-juries ;  and,  as 
a  consequence  of  this  authority,  the  assembly  itself,  its  officers,  and 
servants,  and  all  persons  connected  with  every  such  investigation, 
enjoy  a  perfect  immunity  for  every  thing  fairly  said,  done,  or  pub- 
lished, in  the  course  of  such  inquiry. 

642.  The  other  incidental  powers  of  a  legislative  assembly,  being 
more  strictly  analogous  to  those  exercised  by  judicial  Tribunals,  con« 
stitute  its  judicial  powers,  as  distinguished  from  its  legislative ;  and 


256  LEGISLATIVE   ASSEMBLIES.  [PaRT    III 

accordingly,  in  the  exercise  of  these  functions,  a  legislative  assembly 
is  considered  as  a  court,  and  the  journal  of  its  proceedings  as  a 
record.  The  judicial  powers,  anciently  claimed  and  exercised  by 
the  house  of  commons,  in  England,  were  much  more  extensive  than 
they  are  at  present ;  having,  in  the  course  of  many  conflicts  with 
the  courts,  and  by  the  gradual  progress  of  knowledge  on  the  subject 
of  the  separation  of  the  legislative  and  judicial  functions  of  govern- 
ment, been  reduced  from  a  vague,  uncertain,  and  indefinite  mass 
of  powers  to  those  alone,  which  are  considered  necessary  to  enable 
it  to  discharge  its  peculiar  functions  as  the  depositary  of  the  legis- 
lative, and,  in  part,  of  the  administrative  power  of  the  State. 

643.  The  judicial  powers,^  exercised  by  a  legislative  assembly, 
as  incidental  to  or  in  aid  of  its  general  functions,  must  be  carefully 
distinguished  from  those  which  it  exercises  as  a  branch  of  its  legis- 
lative duties  or  in  the  course  of  the  latter.  Thus,  in  the  exercise  of 
its  general  functions  of  administration  or  legislation,  a  legislative 
assembly  frequently  has  occasion  to  pass  upon  the  private  rights  of 
individuals,  in  conflict  either  with  those  of  other  individuals,  or  with 
those  of  the  public.  The  railroad  legislation  of  modern  times  fur- 
nishes abundant  example  of  the  exercise  of  judicial  functions  of  this 
description.  So,  like-\Adse,  in  the  exercise  of  its  supreme  and  sover- 
eign power,  where  such  power  is  not  expressly  restrained,  a  legis- 
lative assembly  may  find  it  necessary  to  try,  convict,  and  punish 
offenders,  out  of  the  common  course  of  criminal  jurisdiction,  by 
means  of  acts  of  attainder,  and  of  pains  and  penalties.  Legislative 
proceedings  of  this  description,  though  frequent  in  the  earlier  periods 
of  parliamentary  history,  have,  in  modern  times,  become  extremely 
infrequent ;  partly,  in  consequence  of  the  improvements  which  have 
taken  place  in  the  criminal  law  and  its  administration ;  but  chiefly, 
perhaps,  from  an  unwillingness  to  administer  criminal  justice 
through  the  forms  of  legislation.  In  all  these  cases,  the  proceed- 
ings are  to  a  greater  or  less  extent  judicial,  and  conducted  accord- 
ingly. Judicial  functions  of  this  description,  not  coming  under  the 
head  of  incidental  powers,  will  be  treated  of  in  another  place. 
These  functions  can  only  be  exercised  by  the  concurrent  act  of  the 
two  branches  and  the  consent  of  the  executive.  The  judicial 
powers,  which  are  incidental,  are  exercised  by  each  branch  sepa- 
rately and  independently  of  the  other. 

644.  In  treating  of  those  judicial  powers  of  a  legislative  assem- 

1  In  the  exercise  of  its  judicial  functions,  a     rules  of  proceeding.     See  Reg.  of  Deb.  VIII 
legislative  body  is  governed  by  its  ordinary     Part  2,  2548;  Cong.  Globe,  IV.  176. 


Chap.  IV.]  incidental  powers.  257 

bly,  which  are  now  in  question,  namely,  those  which  are  incidental 
to  its  general  functions,  it  will  be  convenient  to  consider,  first,  the 
jurisdiction;  second,  the  mode  of  proceeding;  third,  in  what  man- 
ner the  judgments  of  the  assembly  are  enforced;  and  fourth,  what 
punishments  it  may  inflict;  and,  under  each  head,  to  state  the 
difl'erences,  if  there  are  any,  between  cases  in  which  the  proceedings 
relate  to  members,  and  those  in  which  they  relate  to  other  persons. 

Section  I.  —  Of  the  Incidental  Jurisdiction  of  a  Legislative 

Assembly. 

645.  This  jurisdiction,  being  conferred  for  the  purpose  of  enabling 
a  legislative  assembly  to  discharge  its  peculiar  functions,  in  a  free, 
independent,  and  intelligent  manner,  is  in  its  very  nature,  original, 
exclusive,  and  final. 

646.  It  is  original,  because,  being  conferred  for  the  benefit  of  the 
assembly  itself,  and  not  for  the  advantage  of  any  private  individual, 
it  arises  only  in  reference  to  matters  growing  out  of  the  proceedings, 
or  connected  with  the  official  character  of  the  members  of  the  as- 
sembly. 

647.  It  is  exclusive,  because,  otherwise,  the  objects  for  which  it 
is  conferred,  namely,  the  freedom  and  independence  of  the  assem- 
bly, would  fail  of  their  attainment ;  inasmuch  as  a  portion  of  the 
means,  by  which  the  assembly  is  enabled  to  perform  these  func- 
tions, would  be  restrained,  by  the  concurrent  or  appellant  jurisdic- 
tion of  some  other  tribunal. 

648.  But  this  jurisdiction  is  not  exclusive  in  any  other  sense  than 
this,  that  no  other  tribunal  can  control  the  action,  set  aside  the 
judgments,  or  revise  the  proceedings,  of  the  assembly ;  though, 
whenever  any  question,  which  has  already  been  decided  by  the 
assembly  itself,  or  which  belongs  within  its  jurisdiction,  arises  inci- 
dentally in  any  other  court  or  tribunal,  and  for  any  other  purpose 
than  that  for  which  it  is  entertained  by,  or  comes  within  the  juris- 
diction of,  the  assembly,  such  tribunal  may  judge  of  and  decide  that 
question,  for  the  purposes  of  the  proceeding  in  reference  to  which  it 
has  arisen.  Thus,  the  assembly  is  the  judge  of  the  election  of  its 
members,  and  may  consequently,  for  that  purpose,  decide  upon  the 
right  of  an  elector  to  vote ;  but,  notwithstanding,  an  elector,  whose 
vote  has  been  refused,  by  the  returning  officers,  may  also  bring  his 
action  against  them  for  damages,  for  such  refusal,  and  for  that  pur- 
Dose  may  establish  his  right  to  vote,  at  law,  though  the  assembly 
may  have  decided  otherwise  in  determining  the  election. 

22* 


:;i58  legislative  assemblies.  [Part  Tli. 

649.  The  jurisdiction  of  a  legislative  assembly,  acting  judicially 
is  necessarily  final,  that  is,  its  proceedings  cannot  be  revised,  noi 
its  judgment  suspended,  by  any  other  court  or  tribunal.  Thus, 
when  a  member  is  expelled,  no  other  court  can  revise  the  doings  of 
the  assembly,  and  reinstate  such  member  in  his  place.  So,  if  a 
legislative  assembly  commit  a  member  or  other  person  as  a  punish- 
ment for  a  contempt  or  other  offence,  no  other  court  or  tribunal  can 
discharge  the  prisoner,  on  the  ground  of  his  having  been  illegally 
committed,  provided  the  cause  of  the  commitment  appear  with  the 
requisite  certainty.  In  cases  of  this  kind,  therefore,  it  should  clearly 
appear,  in  the  warrant,  that  the  assembly  has  jurisdiction  of  the 
matter  for  which  the  commitment  takes  place ;  but  the  particular 
facts  of  the  case,  upon  which  the  assembly  has  predicated  its 
judgment,  should  not  be  stated  ;  if  they  are,  they  will  be  subject  to 
revision. 

650.  The  jurisdiction  of  a  legislative  assembly,  as  a  judicial  tri- 
bunal, is  both  civil  and  criminal,  but  chiefly  the  latter,  and  for  con- 
tempts. 

I.    Civil  Jurisdiction. 

651.  As  a  civil  tribunal,  a  legislative  assembly,  at  the  present 
day,  claims  and  exercises  no  other  jurisdiction,  than  to  decide  upon 
the  returns  and  elections  of  its  members,  and  upon  the  question  of 
their  rights  as  such,  as  affected  by  disqualifying  circumstances  sub- 
sequently arising.  Formerly,  the  house  of  commons,  in  England, 
under  pretence  of  privilege,  entertained  jurisdiction  of  cases  of  mere 
civil  right,  in  which  members  were  concerned ;  but  this  course  of 
proceeding,  which  appears  to  have  commenced  with  the  long  par- 
liament, and  to  have  terminated  only  about  the  year  1768,^  is  now 
whoUy  abandoned.  In  this  countiy,  no  such  pretence  was  ever  set 
up,  and  the  only  civU  jurisdiction  of  a  judicial  nature,  exercised  in 
our  legislative  assemblies,  either  before  or  since  the  revolution,  is 
that  of  deciding  upon  the  returns  and  elections  of  their  members. 

2.    Criminal  Jurisdiction.  . 

652.  The  criminal  jurisdiction  of  a  legislative  assembly  is  much 
more  extensive  than  the  civil ;  embracing  the  misconduct  or  disor- 
derly behavior  of  its  own  members,  as  well  as  misdemeanors  and 
offences  committed  by  other  persons.     In  both  cases,  the  offence 

I  Pemberton,  91.     See  ante,  8, 537. 


Chap.  IV.]  incidental  powers.  259 

may  be  committed  either  against  the  assembly  itself,  or  against  its 
members  individually. 

653.  Members  may  be  guilty  of  misconduct,  either  towards  the 
assembly  itself,  towards  one  another,  or  towards  strangers.  Mis- 
conduct of  members  towards  the  assembly,  besides  being  the  same 
in  general  as  may  be  committed  by  other  persons,  consists  of  any 
breaches  of  decorum  or  order,  or  of  any  disorderly  conduct,  disobe- 
dience to  the  rules  of  proceeding,  neglect  of  attendance,  etc. ;  or  of 
any  crime,  misdemeanor,  or  misconduct,  either  civil,  moral,  or  offi- 
cial, which,  though  not  strictly  an  attack  upon  the  house  itself,  is 
of  such  a  nature  as  to  render  the  individual  a  disgrace  to  the  body 
of  which  he  is  a  member.  Misconduct  of  members  towards  one 
another  consists  of  insulting  remarks  in  debate,  personal  assaults, 
threats,  challenges,  etc.,  in  reference  to  which,  besides  the  ordinary 
remedies  at  law  or  otherv\dse,  the  assembly  interferes  to  protect  the 
member,  who  is  injured,  insulted,  or  threatened.  Oflences  by  mem- 
bers towards  other  persons,  of  which  the  assembly  has  cognizance, 
consist  only  of  injurious  and  slanderous  assertions,  either  in  speech 
or  by  waiting,  which,  as  there  is  no  other  remedy,  the  assembly 
itself,  if  it  thinks  proper,  takes  cognizance  of  and  punishes. 

654.  The  offences  against  a  legislative  assembly,  which  may  be 
committed  by  persons  who  are  not  members  of  it,  are  exceedingly 
multifarious ;  embracing  all  offences  against  its  members  indi- 
vidually, all  breaches  of  privilege,  whether  personal  or  collective, 
and  all  wilful  obstructions  to  its  regular  proceedings,  and  to  the 
free,  independent,  and  full  performance  of  its  various  functions. 

3.   Jiirisdiction  of  Contempts. 

655.  Like  every  other  tribunal,  a  legislative  assembly  is  author- 
ized to  punish  persons,  whether  members  or  others,  who  are  guilty 
of  any  contempt  towards  it,  by  disorderly  or  contumacious  behavior 
in  its  presence,  or  by  any  wilful  disobedience  to  its  orders.  It 
seems  necessary  to  observe,  that  the  contempts  punishable  by  a 
legislative  assembly  are  not  confined  to  proceedings  in  its  judicial 
capacity,  but  may  arise  in  the  course  of  its  legislative  or  other 
functions. 


260  LEGISLATIVE   ASSEMBLIES.  [PaKT    LTL 

Sectiox  II.  —  Of  the   Mode   of   Proceeding   by  a  Legislative 
Assembly,  in  the  Exercise  of   its  Judicial  Functions. 

656.  It  will  be  most  convenient,  as  well  as  intelligible,  to  con- 
sider the  mode  of  proceeding,  under  the  several  heads  which  have 
already  been  adopted  in  treating  of  the  jurisdiction,  namely  :  —  first, 
civil  proceedings ;  second,  criminal  proceedings ;  and,  third,  con- 
tempts. 

1.    Civil  Proceedings. 

657.  The  only  subjects,  which  come  within  the  civil  jurisdiction 
of  a  legislative  assembly,  relate  to  the  rights  of  members  to  their 
seats ;  in  reference  to  which,  the  proceedings  are  either  betv\^een 
parties  adversely  interested,  or  ex  parte.  Cases  of  the  first  kind 
arise  where  a  member  is  returned,  and  the  return,  election,  or  right 
of  the  member  returned  to  sit,  is  controverted  by  the  electors  or 
some  of  them,  or  by  an  opposing  candidate.  Cases  of  the  latter 
kind  occur,  when  an  inquiry  is  instituted  by  the  assembly  itself,  on 
the  motion  or  suggestion  of  some  member.  In  the  former  class  of 
cases,  which  constitute  what  are  usually  called  controverted  elec- 
tions, if  the  proceedings  are  not  otherwdse  regulated  by  law,  as  they 
are  in  England  and  in  some  of  the  United  States,  the  trial  may  be 
either  at  the  bar  of  the  assembly,  or,  in  the  first  instance,  before  a 
committee  appointed  for  the  purpose,  and,  in  either  case,  the  pro- 
ceedings are  as  closely  assimilated,  as  the  nature  of  the  subject  wall 
admit,  to  those  which  usually  take  place  on  the  trial  of  an  action 
at  law  in  the  ordinary  courts ;  the  parties  being  commonly  assisted 
by  counsel,  and  witnesses  examined,  as  in  other  cases,  except  that 
they  are  not  necessarily  or  perhaps  usually  upon  oath.  "Where  an 
inquiry  is  instituted  ex  parte,  on  the  motion  or  suggestion  of  a 
member,  the  subject  is  generally  referred  to  a  committee  ;  and  if  the 
right  of  a  member  or  other  person  happens  to  be  involved  in  the 
proceedings,  they  may  assume  the  form  of  a  controverted  election, 
in  which  case,  they  will  be  the  same  as  already  mentioned ;  but, 
where  the  investigation  is  one-sided,  the  committee  may  examine 
witnesses  or  arrive  at  the  knowledge  of  the  facts  in  such  other  way 
as  it  may  think  proper.  Members,  if  interested  in  such  investiga- 
tion, are  to  withdraw  from  the  assembly,  after  being  heard,  in  the 
manner  stated  under  the  head  of  Criminal  Proceedings. 

658.  Witnesses  may  be  summoned  to  appear  and  give  their  tes- 
timony, before  the  assembly,  or  before  a  committee,  either  by  a 
warrant  from  the  presiding  officer,  issued  in  pursuance  of  a  general 


Chap.  IV.]  incidental  powers.  261 

order  previously  adopted,  authorizing  him  to  send  "  for  persons, 
papers,  and  records,"  or  in  pursuance  of  a  special  order  to  the  same 
effect,  relating  to  the  particular  case  or  person  ;  or  they  may  be 
summoned  by  the  special  order  of  a  committee,  in  pursuance  of  a 
similar  general  or  special  order.  The  summons  may  be  served  by 
the  sergeant-at-arms,  a  messenger,  or  by  any  otlier  ofTicer,  or  in  such 
other  manner,  as  will  be  legal  in  other  cases,  according  to  the  laws 
of  the  particular  State.' 

609.  If  the  person,  whose  testimony  is  wanted  as  a  witness,  is 
in  custody,  it  is  the  practice  for  the  presiding  officer,  by  the  order 
and  direction  of  the  assembly,  to  issue  his  warrant  to  the  officer 
having  such  person  in  custody,  and  to  the  sergeant-at-arms  of  the 
assembly,  for  the  production  of  the  witness  at  the  bar,  or  before  the 
committee.  When  the  witness  is  in  the  custody  of  the  assembly 
itself,  he  may  be  brought  to  the  bar  or  before  the  committee,  by  an 
order  to  that  effect  to  ihe  sergeant-at-arms.  It  is  usual,  also,  where 
the  testimony  of  a  witness  in  the  custody  of  the  sergeant  is  wanted 
before  a  committee,  for  the  assembly  to  order,  that  when  the 
committee  requires  the  attendance  of  the  witness,  it  may  send  for 
him." 

660.  With  regard  to  the  expenses  of  the  witnesses,  the  rule  in 
legislative  assemblies  is  analogous  to  that  wliich  prevails  in  courts 
of  law,  not  to  compel  a  witness  to  give  his  testimony,  until  his  rea- 
sonable charges  have  been  paid  or  tendered.-^  Where  a  witness  is 
summoned  on  the  behalf  and  at  the  request  of  an  individual,  such 
party  is  bound  to  pay  the  expenses ;  but  where  the  investigation  is 
ex  parte,  he  can  only  receive  payment  of  his  expenses,  in  the  same 
manner  that  government  witnesses  are  paid  according  to  the  laws 
of  the  particular  State.  In  all  cases,  however,  it  seems,  that  wit- 
nesses are  bound  to  appear,  in  obedience  to  the  summons,  without 
being  previously  paid  their  expenses."* 

661.  The  only  difference,  between  the  examination  of  witnesses, 
before  a  legislative  assembly  or  committee,  and  their  examination 
before  other  tribunals,  is,  that  in  the  former,  the  testimony  is  not 
usually  given  under  oath ;  a  legislative  assembly,  unless  there  is 
particular  provision  to  that  effect  by  law,  not  being  authorized  to 
administer  oaths.^  Whether,  however,  the  testimony  is  given 
Under  oath  or  not,  if  a  witness  prevaricates,  testifies  falsely,  or  other- 

1  The  subject  of  witnesses,  which  is  here  '  Rogers,  87. 

and  elsewiiere  in  this  chapter  mentioned,  only  *  Rogers,  88. 

Incidentnllv,  is  fully  treated  of  in  the  fifth  part.  *  This  power  is  expressly  conferred  by  the 

*  Rogers  on  Election  Committees,  86.  constitution  of  Vcrraout. 


262  LEGISLATIVE   ASSEMBLIES.  [PaKT    III- 

wise  misbehaves  himself,  in  giving  or  refusing  to  give  his  testimony, 
he  will  be  guilty  of  a  contempt,  and  punishable  accordingly.  If 
such  misbehavior  occurs  at  the  bar  of  the  assembly,  the  offender 
may  be  proceeded  against  at  once ;  if,  before  a  committee,  it  must 
first  be  reported  to  the  assembly,  for  its  interposition. 

662.  If  a  witness,  being  duly  summoned,  in  either  of  the  modes 
above  mentioned,  refuses  or  neglects  to  appear,  and  such  refusal  or 
neglect  is  made  manifest  to  the  assembly,  by  the  non-appearance 
of  the  witness  at  the  time  appointed,  or  upon  the  report  of  the  com- 
mittee, the  witness  may  be  ordered  to  be  taken  into  custody  by  the 
sergeant-at-arms,  and  will  also  be  punishable  as  for  a  contempt. 

663.  Parties  and  witnesses,  attending  as  such,  or  having  occa- 
sion, or  ordered,  to  attend  as  such,  before  a  legislative  assembly  or 
its  committees,  are  entitled  to  the  same  protection  in  gomg,  staying, 
and  returning,  as  they  would  receive  in  a  court  of  law ;  and,  if 
arrested,  will  be  entitled  to  their  discharge  in  the  same  manner  as 
members,  and  by  the  same  form  of  proceeding.  When  they  are 
apprehensive  of  an  arrest,  and  make  that  fact  known  to  the  assem- 
bly, it  is  usual  for  that  body  to  order  that  its  protection  be  allowed 
to  such  persons,  during  the  pendency  of  the  business  which  entitles 
them  to  privilege,  or  their  necessary  attendance  as  witnesses.^ 

2.    Oriminal  Proceedings. 

664.  The  conduct  of  members  may  become  implicated  either 
incidentally  in  the  course  of  other  proceedings,  or  it  may  be  the 
subject  of  a  direct  complaint,  verbal  or  in  writing,  by  other  mem- 
bers, or  by  other  persons ;  and,  in  all  these  cases,  the  proceedings 
do  not  differ  essentially  from  what  they  would  be  in  the  case  of 
private  persons,  except  that  it  is  not  necessary,  in  aU  cases,  to  place 
the  member  accused  at  the  bar.  When  a  complaint  is  to  be  made 
against  a  member,  it  appears  to  be  the  practice  to  give  him  notice 
beforehand,^  or  to  procure  an  order  to  be  passed,  requiring  his 
attendance  at  a  particular  time  to  hear  the  complaint,  and  other- 
wise not  to  make  it  in  his  absence.  Where  the  member  remains 
in  his  place  in  the  assembly,  during  the  preliminary  proceedings,  it 
is  the  rule,  that  when  the  question  is  stated  in  the  assembly,  the 

1  As  to  the  effect  of  these  orders  of  protec-  thercvipon,  at  the  suggestion  of  the  chairman, 

tion,  see  ante,  638,  note.  an  order  was  passed  for  the  attendance  of  Mr, 

"  In  the  case  of  Mr.  Senator  Smith,  the  com-  Smith  in  his  place.     Ann.  of  Cong.  10th  Cong 

Jlittee  to  whom  his  case  was  referred,  gave  1st  Sess.  I.  39,  56. 
notice  wlien  they  were  ready  to  report,  and 


Chap.  IV.]  incidental  powers.  26S 

member  imi)licated  should  be  first  heard,  and  then  withdraw  from 
the  assembly,  until  the  question  is  decided.  This  is  the  established 
practice  in  the  house  of  commons,  and  is  founded  in  the  indecency 
of  a  man's  sitting  as  a  judge  in  his  own  cause.  If  the  member  does 
not  withdraw  of  his  own  accord,  he  may  be  ordered  to  do  so  by  the 
assembly.  If  the  case  be  not  perfectly  clear,  as  to  the  propriety  of 
a  member's  withdrawing,  he  may  himself  make  a  question  to  the 
assembly  for  their  opinion. 

665.  But  where  the  immediate  question  before  the  assembly  is 
not  the  one  in  which  a  member  is  interested,  but  only  relates  to  the 
time  at  which  that  question  is  to  be  tried,^  or  is  a  mere  question  of 
order  involving  the  precedence  of  business,  with  relation  thereto,-  it 
has  been  held  in  this  country  that  such  member  may  nevertheless 
vote  tiiereon. 

666.  When,  in  consequence  of  words  spoken  in  debate,  or  in  the 
course  of  any  other  proceeding  of  the  house,  or  of  a  committee 
either  select  or  of  the  whole  or  otherwise,  a  quarrel  arises  between 
members,  which  the  speaker  sees  may  lead  to  injurious  results,  it  is 
his  duty  to  interfere  at  once  without  waiting  for  the  previous 
authority  of  the  house,  and,  by  means  of  a  retraction  or  apology, 
compel  such  members  to  settle  their  quan-el  immediately,  or,  by 
ordering  them  into  the  custody  of  the  sergeant-at-arms,  prevent 
them  from  leaving  the  house  until  they  pledge  themselves  that  the 
quarrel  shall  go  no  further.'^  The  propriety  of  this  course  is  still 
more  manifest  where  the  parties,  as  sometimes  happens,  resort  to 
blows  or  other  acts  of  violence.*  The  speaker,  instead  of  proceed- 
ing at  once,  of  his  own  authority,  or  the  implied  sanction  of  the 
house,  may  wait  for  it  to  take  or  indicate  such  course  as  it  may 
think  proper.  The  former  method  is  most  generally  adopted  by  the 
speaker  of  the  house  of  commons ;  the  latter  has  been  most  com- 
monly pursued  by  presiding  officers  in  this  countiy.  The  sending 
of  a  challenge  by  one  member  to  another,  or  by  any  person  to  a 
member,  for  words  spoken  by  the  latter  in  debate,  is  a  breach  of 
privilege,  and  will  be  dealt  with  accordingly,  unless  a  full  and  am- 
ple apology  is  offered  to  the  house  and  to  the  member  offended.'' 

667.  The  most  usual  course  of  proceeding,  where  a  person  not  a 
member  has  been  guilty  of  some  misconduct,  of  which  the  assembly 
has  judicial  cognizance,  is,  in  the  first  place,  upon  the  complaint  or 

1  J.  of  H.  26th  Con<;.  1st  Sess.  1283.  *  See  J.  of  H.  30th  Cong.  1st   Sess.   536; 

«  Cong.  Globe,  V^1I.  531.  Cong.  Globe,  X.  451;  Cong.  Globe,  XIIF.  578. 

»  May,  258.  '  May,  258.    See  also  J.  of  C.  lU.  232,  238, 

236. 


264  LEGISLATIVE  ASSEMBLIES.  [PaRT    III 

motion  of  some  member  to  ascertain  the  facts,  and  then  to  declare 
them  to  be  an  offence,  and  to  order  the  individual  implicated  or 
supposed  to  be  guilty,  into  the  custody  of  the  serge ant-at-arms. 
"When  that  officer  has  informed  the  assembly,  through  the  speaker, 
that  he  has  the  offender  in  custody,  he  is  brought  to  the  bar  of  the 
assembly,  and  being  there  informed  of  the  charge  against  him,  is 
interrogated  as  to  his  guilt  or  innocence.  He  is  then  heard  in  his 
defence,  by  counsel,  if  he  desires  it,  and  such  subsequent  proceed- 
ings are  adopted  as  may  be  deemed  proper.  If  he  refuses  to  answer 
the  interrogatories,  he  will  be  punishable  as  for  a  contempt.  If  he 
denies  the  facts  alleged  against  him,  they  may  be  investigated  either 
by  the  assembly  itself,  or  by  a  committee.  If  the  proceedings  re- 
quire more  than  one  sitting,  the  accused  is  to  be  retained  in  the 
custody  of  the  sergeant-at-arms,  and  brought  to  the  bar  whenever 
the  assembly  may  order.  Sometimes  the  supposed  offender,  instead 
of  being  ordered  into  the  custody  of  the  sergeant-at-arms,  and 
brought  to  the  bar  by  that  officer,  is  merely  summoned  to  appear 
before  the  assembly  at  an  appointed  time,  to  answer  to  the  offence 
alleged  against  him.^  An  offender  may  be  discharged,  at  any  time 
upon  causing  a  petition,  expressing  proper  contrition  for  his  offence, 
to  be  presented  to  the  assembly .^ 

668.  When  the  matter  complained  of  is  something  published  in 
a  newspaper,  the  newspaper  must  be  produced,  in  order  that  the 
paragraphs  complained  of  may  be  read ;  and,  in  one  case,  in  the 
house  of  commons,  where  a  member,  who  complained  of  the  man- 
ner in  which  his  speech  was  published  in  a  newspaper,  was  proceed- 
ing to  address  the  house,  he  was  stopped  by  the  speaker  for  the 
reason  that  he  had  no  copy  of  the  newspaper  on  which  to  found 
his  complaint.  The  member,  who  makes  the  complaint,  must  also 
be  prepared  with  the  names  of  the  printer  or  publisher  if  he  intends 
to  follow  up  his  complaint  with  a  motion.^ 

669.  According  to  Mr.  May,*  "  It  is  the  present  practice  "  in  par- 
liament, "  when  a  complaint  is  made,  to  order  the  party  complained 
of  to  attend  the  house ;  and  on  his  appearance  at  the  bar,  he  is 
examined  and  dealt  with  according  as  the  explanations  of  his  con- 
duct are  satisfactory  or  otherwise ;  or  as  the  contrition  expressed  by 
him  for  his  offence  conciliates  the  displeasure  of  the  house.    If  there 

1  See  the  proceedings  of  the  senate  of  the  Uouston,  for  an  assault  on  William  Stanbury, 

United  States,  in  1800,  against  William  Duane  a  member, 
for  a  libel   on   the   senate,  published  in  tlie         *  May,  94. 
Aurora;  and  the  proceedings  of  the  house  of  ^  May,  88,  89. 

representatives,  in  1832,  in  the  case  of  Samuel        •  May,  8S. 


Chap.  IV.]  incidental  powers.  26 


be  any  special  circumstances  arising  out  of  a  complaint  of  a  breach 
of  privilege  it  is  usual  to  appoint  a  select  committee,  to  inquire  into 
them,  and  the  house  suspends  its  judgment  until  their  report  has 
been  presented." 

670.  If  there  are,  in  the  particular  State,  by  the  authority  of 
whose  legislative  assemblies  a  comnntment  takes  place,  any  consti- 
tutional or  legal  provisions  relating  to  the  subject  of  criminal  com- 
mitments generally,  it  will  be  safest  to  follow  such  provisions ;  but 
the  warrant  should  only  state  the  fact  of  the  oflbnce,  in  general 
terms,  in  order  to  show  that  the  assembly  has  jurisdiction  of  it 
without  setting  forth  the  particular  facts,  which  are  supposed  by  the 
assembly,  to  constitute  the  offence. 

3.   Proceedings  in  case  of  Contempt. 

671.  A  contempt  of  the  authority  of  a  legislative  assembly  may 
be  committed  either  in  or  out  of  its  presence.  In  the  former  case, 
it  may  be  either  by  a  person  already  in  custody  of  the  sergeant-at- 
arms,  or  by  some  person  attending  as  a  party  or  witness,  or  as  a 
spectator  or  auditor  of  the  proceedings.  Where  the  contempt  is  in 
the  presence  of  the  assembly,  if  the  offender  is  not  in  custody,  the 
first  thing  is  to  order  him  to  be  taken  into  custody,  and  then,  which 
is  also  the  case  where  the  offender  is  already  in  custody,  the  assem- 
bly proceeds  at  once,  the  offence  being  apparent,  to  pass  such  sen- 
tence upon  him  as  it  may  think  proper. 

672.  Contempts  committed  out  of  the  presence  of  the  assembly 
usually  consist  of  disobedience  to  its  orders.  In  these  cases,  the 
first  step  is  to  adjudge  the  disobedience  a  contempt,  and  then  to 

^  order  the  offender  into  custody.  He  is  then  brought  to  the  bar  and 
interrogated,  and  such  further  proceedings  had  as  may  be  deemed 
proper.  Where  the  offender  is  a  member,  the  proceedings  do  not 
differ,  except  in  his  being  required  to  withdraw  when  the  question 
is  made. 

Section  III.     In  what   Manner  the  Judgments   of  a  Legisla- 
tive Assembly  are  enforced. 

673.  One  of  the  modes  by  which  the  orders  or  judgments  of  a 
legislative  assembly  may  be  enforced,  is,  to  bring  the  person  refus- 
ing or  disobeying  to  the  bar,  and  there  require  him  to  submit 
himself  to  the  assembly ;  and,  on  his  refusing,  in  their  presence,  so 
to  do,  to  punish  him  as  for  a  contempt. 

23 


266  LEGISLATIVE  ASSEMBLIES.  [PaRT   111. 

674.  It  was  formerly  the  practice,  in  both  houses  of  the  British 
parliament,  to  require  offenders  to  receive  the  judgment  of  the 
house  kneeling  at  the  bar.  But  the  practice  has  long  since  been 
discontinued  in  both  houses ;  though  in  the  lords,  the  entries  in  the 
journals  still  assume  that  the  prisoners  "  are  on  their  knees "  at 
the  bar.  In  the  house  of  commons,  in  the  year  1750,  Mr.  Alex- 
ander MuiTay  obstinately  refused  to  receive  his  sentence  kneeling 
at  the  bar,  and  was  severely  punished  for  his  contempt  of  the 
authority  of  the  house.^  But,  afterwards,  in  1772,  and  probably  in 
consequence  of  this  refusal,  the  house  ordered,  that  whenever  any 
person  should  thenceforth  be  brought  to  the  bar  for  judgment,  or  to 
be  discharged,  he  should  receive  the  judgment  of  the  house  stand- 
ing, unless,  it  should  be  otherwise  directed  in  the  order.^ 


Section    IV.     Of    the    Punishments    which    a    Legislative 

Assembly  may  inflict. 

675.  The  punishments,  besides  the  withdrawal  of  privileges 
conferred,'^  which  are  usually  within  the  competency  of  a  legis- 
lative assembly  to  inflict,  are  those  of  fine,  imprisonment,  and 
reprimand,  to  which  must  be  added,  where  the  offender  is  a  member, 
that  of  expulsion. 

1.   Fine, 

676.  In  England,  both  houses  of  parliament  were  anciently  in 
the  practice  of  imposing  the  payment  of  a  fine  by  way  of  punish- 
ment ;  and  this  is  understood,  at  the  present  day,  to  be  the  practice 
of  the  lords ;  but  the  commons  appear  to  have  long  since  waived 
or  abandoned  this  form  of  punishment ;  and  it  has  even  been  laid 
down  that  they  now  have  no  such  power.  In  this  country,  with 
one  or  two  exceptions,  in  which  there  is  a  special  constitutional 
provision  to  that  effect,  the  legislative  assemblies  are  not  authorized 
to  impose  a  fine  by  way  of  punishment.  The  house  of  commons, 
however,  does,  in  some  sort  inflict  a  fine ;  persons  in  the  custody 
of  the  sergeant-at-arms  being  usually  required,  before  being  dis- 
charged, to  pay  the  fees  of  that  officer.  Where  this  punishment  is 
inflicted,  the  order  is  that  the  offender  pay  such  a  sum,  and,  in  the 
mean  time,  stand  committed  to  the  custody  of  the  sergeant-at-arms. 

1  Comm.  Jour.  XXVI.  48;  Hans.  P.  H.  XIV.         »  As  for  example  that  of  a  reporter.    J,  of 
«94;  Walpole's  Memoirs  of  Geo.  II.  15.  H.  24th  Cong.  1st  Sess.  983,  1020,  1021. 

a  Comm.  Jour.  XXXIH.  594. 


Chap.  IV.]  incidental  powers.  267 


2.   Imprisonment. 

Qll.  This  mode  of  punishment  is,  in  general,  the  only  one  now 
authorized  or  resorted  to,  in  ordinary  cases,  by  legislative  assem- 
blies. According  to  the  parliamentary  law  of  England,  there  is  a 
difference  between  the  lords  and  commons,  in  this  respect,  the 
former  being  authorized,  and  the  latter  not,  to  imprison  for  a  period 
beyond  the  session.  In  this  country,  the  power  to  imprison  is 
either  incidental  to  or  expressly  conferred  upon  all  our  legislative 
assemblies ;  and  in  some  of  the  States,  it  is  also  regulated  by 
express  constitutional  provision.  Where  it  is  not  so  regulated  it  is 
understood,  that  the  imprisonment  terminates  w\\h  the  session. 

678.  Where  there  is  no  provision  regulating  the  time  of  impris- 
onment, if  a  commitment  is  general,  the  prisoner  wdll  be  entitled  to 
his  discharge  on  the  termination  of  the  session ;  if  it  is  for  a  certain 
time,  the  prisoner  will  be  entitled  to  his  discharge  on  the  expiration 
of  the  time,  or  the  termination  of  the  session,  whichsoever  first 
happens. 

679.  Where  the  time  of  imprisonment  is  regulated  and  limited, 
a  commitment  for  any  period  not  exceeding  that  time  may  be 
made,  notwithstanding  the  termination  of  the  session  in  the  mean 
time  ;  but,  if  a  commitment  is  general,  without  limitation  of  time, 
the  case  must  be  deemed  the  same,  as  if  it  had  been  for  the  utmost 
limit  of  time,  and  such  commitment  will  accordingly  termmate 
either  with  the  expiration  of  that  time,  or  with  the  session. 

680.  Where  this  form  of  punishment  is  adopted,  a  warrant  is 
issued  by  the  presiding  officer,  by  order  of  the  assembly,  reciting 
the  judgment  or  order  of  the  assembly,  and  directing  the  sergeant- 
at-arms,  to  commit  the  prisoner  to  such  a  prison,  and  the  keeper 
thereof  to  receive  him  into  his  custody,  and  safely  keep  hini  to  the 
expiration  of  the  sentence. 

681.  In  the  house  of  commons,  when  an  offender  is  punished  by 
imprisonment,  the  form  of  the  sentence  is,  that  he  be  committed  to 
the  custody  of  the  sergeant-at-arms,  or  to  Newgate,  or  the  Tower, 
during  the  pleasure  of  the  house  ;  and  the  practice  is,  to  keep  ofiend- 
ers,  so  committed,  in  custody,  until  they  present  petitions  praying 
for  their  release,  and  expressing  contrition  for  their  offences,  or, 
imtil  upon  motion  made  in  the  house,  it  is  resolved  that  they  shall 
be  discharged.  They  are  then  to  be  brought  to  the  bar,  and  after 
an  admonition  or  reprimand  from  the  speaker,  are  discharged  on 


268  LEGISLATIVE  ASSEMBLIES.  [PaRT  III. 

the  payment  of  their  fees.^  Under  peculiar  circumstances,  how- 
ever, attendance  at  the  bar,^  and  the  admonition  or  reprimand,^ 
have  been  dispensed  with,  and  the  payment  of  fees  remitted."^ 


3.   Reprimand, 

682.  Where  this  form  of  punishment  is  inflicted  upon  a  person 
who  is  not  a  member,  the  offender  is  brought  to  the  bar  of  the 
assembly,  by  the  sergeant-at-arms,  and  there  reprimanded  by  the 
presiding  officer,  in  the  name,  and  by  the  authority  of  the  assembly. 
The  offender  is  then  discharged.  Where  the  offender  is  a  member, 
he  receives  the  reprimand  standing  in  his  place.  Admonition  may 
be  considered  as  a  mild  form  of  reprimand.  What  is  said  by  the 
presiding  officer  on  these  occasions,  is  usually  ordered  to  be  entered 
on  the  journal. 

4.  Expulsion, 

683.  The  three  forms  of  punishment  abeady  mentioned  may  be 
inflicted  upon  all  persons,  whether  members  or  not ;  but  expulsion 
can  only  be  infficted  upon  members.  Where  no  provision  is  made 
relating  to  this  subject,  expulsion  takes  place  in  the  same  manner 
with  any  other  proceeding.  In  some  of  the  constitutions,  there  are 
express  provisions  upon  this  subject,  which  in  those  States,  of 
course,  must  be  observed. 


Section  V.  In  what  Manner  and  to  what  Extent  the  Inci- 
dental Powers  of  Legislative  Assemblies  in  the  United 
States  have  been  affected  by  Constitutional  and  Legal 
Provisions. 

684.  The  constitutions  of  the  United  States,  and  of  almost  all 
the  States,  contain  provisions  relating  to  the  incidental  powers  of 
their  legislative  assemblies,  which,  although  widely  differing  among 
themselves,  in  some  cases,  as  to  the  number  of  powers  enumerated, 
come  clearly  within  the  fii-st  two  rules'^  already  mentioned  in  regard 
to  the  privileges  of  members,  and  do  not,  in  any  degree,  change, 

1  May,  94.  *  Comm.  Jour.  LVIU.  221 ;    Same,  LXXX, 

«  Comm.  Jour.  LXXV.  467.  470;  Same,  LXXXIIL  199;  Same,  XC.  632 

3  Comm.  Jour.  LXXXVL  333;  Same,  XC.  Same,  LXXIV.  192;  LXXXV.  465. 
*82;  Same,  CL  768.  5  Ante,  642,  543. 


Chap.  IV.]  incidental  powers.  269 

either  by  enlarging  or  diminishing,  the  powers  of  jurisdiction  recog- 
nized by  the  ordinary  parliamentary  law.  The  only  changes,  made 
by  these  provisions,  relate  to  the  kind,  form,  and  diiralion  of  the 
punishments  to  be  inflicted.  It  may  be  laid  down,  therefore,  first, 
that  every  legislative  assembly  in  the  United  States  possesses  all 
the  powers  of  jurisdiction,  in  a  judicial  way,  which  are  recognized 
by  the  common  parhamentary  law  ;  and,  second,  that  they  possess 
authority  to  punish  agreeably  to  the  rules  of  that  law,  as  modified  by 
express  constitutional  or  legal  provision.  It  only  remains,  there- 
fore, to  state  these  modifications ;  first,  those  which  relate  to  the 
members  themselves,  and,  second,  those  which  relate  to  other 
persons. 

Article  I.    Incidental  Powers  relating  to  Members. 

685.  In  all  the  constitutions  except  those  of  New  Hampshire, 
Vermont,  Massachusetts,  New  York,  North  Carolina,  Michigan, 
and  California,  there  is  inserted  an  express  provision  authorizing 
each  branch  of  the  legislature  thereby  established,  "  to  punish  its 
members  for  disorderly  behavior ;  "  to  which  the  constitution  of 
Rhode  Island  adds  a  general  authority  to  punish  for  contempt,  and 
that  of  Maryland  the  word  "  disrespectful." 

686.  In  the  constitution  of  New  Hampshire  the  power  to  punish 
members  appears  to  be  included  in  that  of  punishing  generally; 
that  of  Vermont,  after  enumerating  certain  powers,  declares,  of  the 
general  assembly,  that  "  they  shaU  have  all  other  powers  necessary 
for  the  legislature  of  a  free  and  sovereign  State  ; "  whilst  those  of 
Massachusetts,  New  York,  North  Carolina,  Michigan,  and  Cali- 
fornia, are  altogether  silent  on  the  subject.  In  all  these  States, 
therefore,  members  of  the  legislative  assemblies  are  amenable  to 
their  respective  houses  according  to  the  principles  of  the  common 
parliamentary  law. 

687.  In  the  States  of  Massachusetts,  New  Hampshire,  New 
York,  and  North  Carolina,  there  being  no  constitutional  provision 
on  this  subject,  the  power  to  expel  exists,  as  a  necessary  incident 
to  every  deliberative  ^  body,  and  may  be  exercised  at  the  discretion 
of  the  assembly,  and  in  the  usual  way  of  proceeding. 

688.  In  the  constitutions  of  the  United  States,  and  of  all  the 
other  States,  the  power  to  expel  is  expressly  recognized  and 
declared ;  but,  in  aU  of  them,  except  those  of  Vermont  and  Geor- 

1  It  does  not  belong  to  every  collective  body     tee,  or  a  board  of  trustees  or  bank  directors, 
which  deliberates,  as  for  instance,  a  commit-     or  othor  similar  officers. 

23* 


210  LEGISLATIVE   ASSEMBLIES.  [PaRT   III, 

gia,  in  which  the  usual  majority  only  is  required,  the  concurrence 
of  two  thirds  is  necessary.  In  Illinois,  Michigan,  Missouri,  and 
Wisconsin,  two  thirds  of  all  the  members  elected  are  requisite  to  a 
vote  of  expulsion. 

689.  In  the  constitutions  of  Maine,  Rhode  Island,  Connecticut, 
Pennsylvania,  Maryland,  Virginia,  South  Carolina,  Florida,  Ken- 
tucky, Tennessee,  Ohio,  Indiana,  Louisiana,  Mississippi,  Illinois, 
Alabama,  Michigan,  Arkansas,  Texas,  Iowa,  Wisconsin,  and  Mis- 
souri, there  is  a  prohibition  against  expelling  a  member  a  second 
time  for  the  same  offence;  in  those  of  Vermont  and  Michigan, 
there  is  a  prohibition  against  expulsion  for  causes  known  to  the 
constituents  of  a  member  antecedent  to  his  election  ;  and  in  Geor- 
gia, the  power  to  expel  is  restrained,  as  to  cause,  to  disorderly 
behavior,  and  to  conviction  of  any  felonious  or  infamous  offence. 
The  constitutions  of  Illinois  and  Michigan  require  the  reasons  for 
the  expulsion  to  be  entered  on  the  journal  with  the  names  of  the 
members  voting  on  the  question. 


Article  II.    Incidental  Powers  relating;  to  Persons  not  Members. . 

690.  In  the  American  constitutions,  this  subject,  though  impor- 
tant as  regards  the  independence  of  the  legislature,  is  very  diversely 
treated ;  some  contain  no  provision  at  all,  or  a  general  one,  relat- 
ing to  it;  others  enumerate  the  offences  that  maybe  committed 
against  a  legislative  assembly  by  persons  not  members  of  it  with 
considerable  detail ;  while  all,  which  contain  any  thing  on  the 
subject,  unite  in  prescribing  imprisonment  as  the  mode  of  punish- 
ment. 

691.  The  constitution  of  Maine  gives  authority  to  each  branch 
of  its  legislature,  during  the  session,  to  punish  any  person  not 
a  member  by  imprisonment  not  extending  beyond  the  session. 
"  Each  house,  during  its  session,  may  punish,  by  imprisonment, 
any  person  not  a  member,  for  disrespectful  or  disorderly  behavior 
in  its  presence  ;  for  obstructing  any  of  its  proceedings  ;  for  threat- 
ening, assaulting,  or  abusing  any  of  its  members  for  any  thing 
said,  done,  or  doing,  in  either  house ;  provided,  that  no  imprison- 
ment shall  extend  beyond  the  period  of  the  same  session."  ,  This 
provision  is  apparently  broad  enough  to  include  all  the  incidental 
powers  of  a  legislative  assembly,  in  regard  to  persons  not  members, 
by  the  common  parliamentary  law.  The  mode  and  duration  of 
punishment  are  also  the  same. 


Chap.  IV.]  incidental  powers.  271 

692.  The  constitution  of  New  Plampshire  confers  authority  upon 
each  branch  of  the  legislature  of  that  State  to  punish  by  imprison- 
ment, not  exceedinfy  ten  days  for  each  offence,  "  every  person  Avho 
shall  be  guilty*  of  disrespect  to  the  house  in  its  presence,  by  any 
disorderly  and  contemptuous  behavior,  or  by  threatening  or  ill  treat- 
ing any  of  its  members  ;  or  by  obstructing  its  deliberations ;  every 
person  guilty  of  a  breach  of  its  privileges,  in  making  arrests  for 
debt,  or  by  assaulting  any  member  during  his  attendance  at  any 
session ;  in  assaulting  or  disturbing  any  one  of  its  officers  in  the 
execution  of  any  order  or  procedure  of  the  house; —  in  asr>aulting 
any  witness  or  otiier  person  ordered  to  attend  by  and  during  his 
attendance  on  the  house,  or  in  rescuing  any  person  arrested  by 
order  of  the  house  knowing  them  to  be  such.  The  senate,  gov- 
ernor, and  council  shall  have  the  same  powers  in  like  cases ;  pro- 
vided that  no  imprisonment  by  either  for  any  offence  exceed  ten 
days."  This  provision,  like  that  above  recited,  seems  broad  enough 
to  cover  all  offences,  against  a  legislative  assembly,  by  persons  not 
members.  The  mode  of  punishment  remains  the  same  as  by  the 
common  parliamentary  law ;  while  its  duration  may  be  greater. 

693.  The  constitutions  of  Massachusetts,  South  Carolina,  and 
Georgia,  contain  substantially  the  same  provision  on  this  subject. 
The  former  gives  authority  to  each  of  its  legislative  branches  to 
"  punish,  by  imprisonment,  every  person  (not  a  member)  who  shall 
be  guilty  of  disrespect  to  the  house,  by  any  disorderly  or  con- 
temptuous behavior  in  its  presence  ;  or  who  in  the  town  where  the 
general  court  is  sitting,  and  during  the  time  of  its  sitting,  shall 
threaten  harm  to  the  body  or  estate  of  any  of  its  members,  for  any 
thing  said  or  done  in  the  house ;  or  who  shall  assault  any  of  them 
therefor ;  or  who  shall  assault  or  arrest  any  witness  or  other  person, 
ordered  to  attend  the  house  in  his  way  in  going  or  returning ;  or 
who  shall  rescue  any  person  arrested  by  the  order  of  the  house." 
By  the  constitution  of  this  State,  the  term  of  imprisonment  is  not 
to  exceed  thirty  days ;  by  those  of  South  Carolina  and  Georgia,  it 
is  unlimited.  These  provisions  seem  broad  enough  to  cover  all 
offences  against  legislative  bodies  by  persons  not  members. 

694.  The  constitution  of  Florida  provides  that  "  each  house  dur- 
ing the  session  may  punish,  by  imprisonment,  any  person  not  a 
member,  for  disrespectful  or  disorderly  behavior,  in  its  presence,  or 
for  obstructing  any  of  its  proceedings."  The  same  provision  is 
found  in  the  constitutions  of  Alabama,  ^Mississippi,  Louisiana, 
Tennessee,  Indiana,  Illinois,  and  Texas ;  but  in  those  of  Tennessee 
and  Indiana  without  the  latter  clause.     In  Florida  and  Tennessee, 


272  LEGISLATIVE  ASSEMBLIES.  [PaRT  IIL 

the  imprisonment  is  general  and  must  expire  with  the  session,  while 
in  Indiana  and  Illinois  it  cannot  exceed  twenty-four  hours ;  in 
Alabama,  Mississippi,  and  Texas,  forty-eight  hours ;  and  in  Louisi- 
ana, it  is  limited  to  ten  days.  The  terms  used  in  these  constitu- 
tions are  comprehensive  enough  to  include  all  legislative  offences. 

695.  The  constitutions  of  the  United  States  and  those  of  the 
States  of  Vermont,  Rhode  Island,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, Kentucky,  Ohio,  Michigan,  Missouri,  Arkansas,  Iowa,  Wis- 
consin, and  California,  are  sUent  with  respect  to  the  punishment  of 
strangers  for  legislative  offences ;  but  the  constitution  of  Rhode 
Island  expressly  authorizes  the  punishment  of  contempt ;  and  those 
of  Vermont,  Connecticut,  Pennsylvania,  Delaware,  Ohio,  and  Iowa, 
after  conferring  certain  powers,  therein  enumerated,  upon  each 
branch,  add  the  general  clause  aheady  cited,  that  it  shall  also  have 
all  the  other  powers  necessary  to  a  branch  of  the  legislature  of  a 
free  State.  In  the  foregoing  and  aU  the  States  mentioned  in  this 
paragraph,  therefore,  as  well  those  whose  constitutions  do  not  as 
those  which  do  contain  the  general  clause,  above  mentioned,  it 
may  be  considered,  that  each  of  the  legislative  branches  has  juris- 
diction, according  to  the  common  parHamentary  law,  of  all  offences 
committed  against  it  by  persons  not  members. 


LAW  AND   PRACTICE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    FOURTH. 


OF   THE    POWERS   AND   FUNCTIONS    OF   A   LEGISLATIVE 

ASSEMBLY   AS    SUCH. 

(273) 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE   ASSEMBLIES. 


PART    FOURTH. 

OF   THE    POWERS   AND   FUNCTIONS    OF  A  LEGISLATIVE 

ASSEMBLY  AS   SUCH. 


696.  Ix  the  preceding  parts  of  this  work,  having  considered  the 
election,  constitution,  and  incidental  powers  of  a  legislative  assem- 
bly; it  will  be  proper,  before  entering  upon  the  forms  of  pro- 
ceeding, by  which  it  is  governed  and  regulated,  in  the  performance 
of  its  appropriate  functions,  to  consider  what  those  functions  are; 
or,  in  other  words,  what  are  the  powers  and  duties,  for  which  a 
legislative  assembly  is  elected  and  constituted,  and  invested  with 
the  incidental  powers  already  treated  of. 

697.  The  legislative  assemblies  of  the  United  States,  having  all 
been  constructed  upon  the  model  of  Ihe  tvvo  houses  of  the  British 
parliament;  the  forms  of  proceeding  which  prevail  in  the  latter 
have  been  adopted  by  them  as  their  common  parliamentary  law; 
and  upon  that  have  been  ingrafted  the  peculiar  usages  which  dis- 
tinguish the  various  systems  of  parliamentary  practice  in  this  coun- 
try; precisely,  as,  upon  the  basis  of  the  common  law  of  England, 
the  dilTerent  legal  systems  of  the  several  States  have  been  estab- 
lished. 

(275i 


276  LEGISLATIVE  ASSEMBLIES.  [PaRT   IV 

698.  In  order,  therefore,  to  give  a  complete  and  intelligible  view 
of  the  law  and  practice  of  our  own  legislative  assemblies,  it  will  be 
necessary  to  exhibit  somewhat  fully  and  distinctly  the  law  and 
practice  of  the  British  parliament.  Having  thus  indicated  the  com- 
mon parliamentary  law  of  all,  —  th§  basis  upon  which  each  pecu- 
liar system  rests,  —  it  will  then  be  attempted,  to  point  out  wherein 
this  system  has  been  altered,  added  to,  extended,  or  abrogated,  in 
the  systems  which  prevail  in  this  country. 

699.  The  imperial  parliament  of  the  united  kingdom  of  Great 
Britain  and  Ireland  is  composed  of  the  crown  and  of  what  are 
called  the  three  estates  of  the  realm,  namely,  the  lords  spiritual,  the 
lords  temporal,  and  the  commons.  These  several  estates  collec- 
tively constitute  the  parliament,  in  which  the  supreme  or  sovereign 
power  of  the  British  government  resides. 

700.  The  crown,  among  other  important  prerogatives,  is  invested 
with  certain  powers  and  functions  relative  to  the  parliament,  which 
confer  upon  the  king,  or  queen  regnant,  the  chief  place  in  that  body. 
It  belongs  to  the  prerogative  of  the  crown  to  assemble,  continue, 
and  put  an  end  to,  parUaments,  at  its  discretion ;  but  the  exercise 
of  this  branch  of  the  royal  prerogative  is  so  far  regulated,  first,  by 
law,  that  measures  must  be  taken  by  the  crown  for  the  assembling 
of  a  new  parliament  within  three  years  after  every  dissolution,  and 
that  no  parliament  can  be  continued  in  existence  longer  than  seven 
years ;  and,  second,  by  the  mode  in  which  the  government  is  now 
administered,  parliament  must  at  all  events  be  assembled  as  often 
as  once  a  year,  and  it  cannot  safely  be  dissolved  (without  a  new 
one  being  called,)  untU  the  supplies  necessary  to  carry  on  the  gov- 
ernment for  the  current  year  have  been  provided.  In  addition  to 
these  prerogatives,  the  crown  has  a  negative  upon  the  choice  of 
speaker  by  the  commons,  and  upon  bills  agreed  to  by  both  the  other 
branches. 

701.  The  lords  spiritual  and  temporal,  though  generally  spoken 
of  as  two  of  the  three  estates  of  the  realm,  sit  together  and  jointly 
constitute  the  house  of  lords,  which,  in  point  of  rank  and  dignity, 
is  the  second  branch  of  the  parliament.  The  lords  spiritual  are 
composed  of  the  archbishops  and  bishops  of  the  established  church 
of  England,  together  with  four  representative  bishops  of  the  church 
of  Ireland,  who  sit  by  rotation  of  sessions.  The  lords  temporal 
consist,  first,  of  the  peers  of  England,  second,  of  sixteen  representa- 
tive peers  for  Scotland,  chosen  by  the  Scottish  peers,  for  each  par- 
liament, from  their  own  body,  .and,  third,  of  twenty-eight  represent- 
ative peers  of  L'eland  chosen  for  life  from  the  peerage  of  Ireland. 


Chap.  I]  powers  and  functions.  27? 

The  lords  spiritual  are  virtually  appointed  by  the  crown,  as  the 
head  of  the  church.  The  lords  temporal  exercise  their  parliament- 
ary functions,  by  virtue  of  some  title  of  honor  conferred  upon  them 
by  the  crown,  or  of  their  descent  or  inheritance  from  some  one  upon 
whom  or  whose  ancestors  such  a  title  of  honor  has  been  ante 
cedently  conferred. 

702.  The  third  estate,  constituting  the  lowest  branch  of  parlia- 
ment in  point  of  rank  and  dignity  (perhaps  the  highest  in  point  of 
real  power)  consists  of  the  commons,  elected  for  each  parliament 
by  and  for  the  several  constituencies  of  Great  Britain  and  Ireland. 
These  constituencies  in  England,  Wales,  and  Ireland,  are,  first,  the 
several  counties,  sending  members  who  are  entitled  knights  of  the 
shire ;  second,  the  cities,  whose  members  are  denominated  citizens ; 
third,  the  boroughs  and  universities,  whose  members  are  known 
as  burgesses ;  fourth,  the  cinque  ports,  who  elect  what  are  called 
barons ;  and  fifth,  the  towns  and  burghs  of  Scotland,  who  elect 
commissioners.  These  all  sit  together,  and  constitute  the  house  of 
commons.  The  collective  name  of  this  branch  is  the  knights,  citi 
zens,  and  burgesses. 


CHAPTER    FIRST. 

OF  THE  GENERAL  POWERS  OF  A  LEGISLATIVE  ASSEMBLY  IN  THE 

MAKING    OF    LAWS. 


Section  I.    Powers  of  the  Assembly  as  an  Aggregate  Body. 

1.   Legislative  Powers  of  Parliament. 

703.  With  reference  to  the  distribution  which  has  been  made 
in  modern  times  of  the  functions  of  government,  into  the  three 
departments  of  the  legislative,  executive,  and  judicial,  the  collective 
body  of  the  parliament  exercises  the  function  of  the  legislative,  and 
is  accordingly  denominated  the  legislature;  the  executive  being 
vested  in  and  exercised  by  the  crown  and  its  subordinate  officers ; 
and  the  judicial  intrusted  to  the  judges  of  the  several  courts. 

704.  In   the   exercise    of  their   ordinary  functions,  these   three 

24 


278  LEGISLATIVE    ASSEMBLIES.  [PaRT    IV 

departments  are  entirely  independent  and  free  from  the  control 
each  of  the  others ;  but,  from  the  nature  of  the  functions  attributed 
to  each,  the  legislative  or  lawmaking  must  necessarily  be  the 
superior  and  sovereign  power ;  for  though  it  may  not  rightfully 
interfere  with  either  of  the  others,  in  the  discharge  of  their  respec- 
tive duties,  as  a  superior  interferes  in  the  proceedings  and  controls 
the  acts  of  an  inferior  power ;  yet,  it  may,  in  the  exercise  of  its  own 
appropriate  functions,  enlarge,  restrain,  alter,  or  regulate,  at  its  dis- 
cretion, the  powers  and  functions  of  the  other  departments. 

705.  The  power  of  parliament  has  been  variously  described ;  but, 
by  no  author,  in  more  brief,  comprehensive,  and  forcible  terms,  than 
by  Sir  Edward  Coke,  as  quoted  by  the  learned  and  elegant  com- 
mentator on  the  laws  of  England :  ^  —  "It  hath  sovereign  and 
uncontrollable  authority  in  the  making,  confirming,  enlarging, 
restraining,  abrogating,  repeaUng,  reviving,  and  expounding  of 
laws,  concerning  matters  of  aU  possible  determinations,  ecclesiasti- 
cal or  temporal,  civil,  military,  maritime,  or  criminal :  This  being 
the  place,  where  that  absolute,  despotic  power,  which  must  in  all 
governments  reside  somewhere,  is  intrusted  by  the  constitution  of 
these  kingdoms.  All  mischiefs  and  grievances,  operations  and 
remedies,  that  transcend  the  ordinary  course  of  the  laws,  are  within 
the  reach  of  this  extraordinary  tribunal.  It  can  regulate  or  new 
model  the  succession  to  the  crown ;  as  was  done  in  the  reigns  of 
Henry  VIII.  and  William  III.  It  can  alter  the  established  religion 
of  the  land ;  as  was  done  in  a  variety  of  instances,  in  the  reigns  of 
king  Henry  VIII.  and  his  three  children.  It  can  change  and  create 
afresh  even  the  constitution  of  the  kingdom  and  of  parhaments 
themselves ;  as  was  done  by  the  act  of  union,  and  the  several  stat- 
utes for  triennial  and  septennial  elections.  It  can,  in  short,  do 
every  thing  that  is  not  naturally  impossible ;  and,  therefore,  some 
have  not  scrupled  to  call  its  power,  by  a  figure  rather  too  bold, 
the  omnipotence  of  parliament.  True  it  is,  that  what  the  parlia- 
ment doth,  no  authority  upon  earth  can  undo." 

706.  In  describing  the  extent  of  the  jurisdiction,  as  well  as  the 
power  of  parliament,  Mr.  May  remarks:  —  "  The  legislative  author- 
ity of  parliament  extends  over  the  united  Idngdom,  and  all  its 
colonies  and  foreign  possessions ;  and  there  are  no  other  limits  to 
its  power  of  making  laws  for  the  whole  empire,  than  those  which 
are  incident  to  aU  sovereign  authority  —  the  willingness  of  the 
people  to  obey,  or  their  power  to  resist,  —  unlike  the  legislatures  of 

1  Blackstone's  Coram.  I.  160;  Fourth  Institute,  86. 


Chap.  L]  general  powers  of  legislation.  279 

many  other  countries,  it  is  bound  by  no  fundamental  charter  or  con- 
stitution ;  but  has  itself  the  sole  constitutional  right  of  establishing 
and  altering  the  laws  and  government  of  the  empire.  In  the  ordi- 
nary exercise  of  government,  parliament  does  not  legislate  directly  for 
the  colonies.  For  some,  the  queen  in  council  legislates,  while  others 
have  legislatures  of  their  own,  which  propound  laws  for  their  inter- 
nal government,  subject  to  the  approval  of  the  queen  in  council ;  but 
these  may  afterwards  be  repealed  or  amended  by  statutes  of  the  im 
perial  parliament ;  for  their  legislatures  and  their  laws  are  both  sub 
ordinate  to  the  supreme  power  of  the  mother  country.  For  example, 
the  constitution  of  Lower  Canada  was  suspended  in  1838 ;  and  a 
provisional  government,  with  legislative  functions  and  great  exec- 
utive powers,  was  established  by  the  British  parliament.  Slavery, 
also,  was  abolished  by  an  act  of  parliament  in  1833  throughout  all 
the  British  possessions,  whether  governed  by  local  legislatures  or 
not ;  but  certain  measures  for  carrying  into  effect  the  intentions  of 
parliament  were  left  for  subsequent  enactment  by  the  local  bodies, 
or  by  the  queen  in  council.  At  another  time,  the  house  of  assem- 
bly of  Jamaica,  the  most  ancient  of  our  colonial  legislatures,  had 
neglected  to  pass  an  effectual  law  for  the  regulation  of  prisons, 
which  became  necessary  upon  the  emancipation  of  the  negroes ; 
when  parliament  immediately  interposed  and  passed  a  statute  for 
that  purpose.  The  assembly  were  indignant  at  the  interference  of 
the  mother  country,  and  neglected  their  functions,  upon  which  an 
act  was  passed  by  the  imperial  parliament,  that  would  have  sus- 
pended the  constitution  of  Jamaica  unless  within  a  given  time  they 
had  resumed  them.  The  vast  territories  of  British  India  are  sub- 
ject to  the  anomalous  government  of  the  East  India  Company; 
whose  power,  however,  is  founded  upon  statute,  and  who  are  con- 
trolled by  ministers  responsible  to  parliament."  ^ 

707.  In  the  exercise  of  this  vast  power,  according  to  the  funda- 
mental idea  and  constitution  of  parliament,  the  concurrence  of  the 
three  distinct  bodies  of  which  it  is  composed,  each  acting  by  itself, 
and  independent  of  the  others,  is  necessary.  No  two  of  them  act- 
ing together,  much  less  one  alone,  can  make  a  law.  This  funda- 
mental idea  of  all  modern  legislative  bodies,  which  are  fairly  enti- 
tled to  the  name,  has  been  adopted  into  all  the  constitutions  of  the 
United  States,  fully  as  regards  the  two  branches,  but  partially  only 
as  regards  the  executive. 

708.  The  reasons,  on  which  this  negative  voice  of  each  branch  is 

»  May,  36,  37. 


280  LEGISLATIVE  ASSEMBLIES.  [PaRT   IV 

founded,  are  stated  with  great  force  and  clearness  by  a  learned,  able, 
and  judicious  writer,  who  had  himself  been  a  witness  of  the  ad- 
vantages and  disadvantages  of  which  he  speaks,  and  who  had  him- 
self been  a  member  both  of  a  parliamentary  body  exercising  alone 
and  by  itself  the  functions  of  government,  and  of  parliaments  con- 
stituted in  the  ordinary  manner. 

709.  "  Some  affirm,  that  nothing  doth  more  conduce  to  the  lib- 
erty and  security  of  a  people  than  to  have  their  supreme  public 
councils,  under  such  several  negatives.  All  their  interest,  their 
lives,  liberties,  and  estates,  being  under  the  power  of  those  councils, 
it  is  more  safe  where  they  are  to  pass,  from  and  after  one  resolution, 
to  a  yet  further  scrutiny  and  consideration,  under  another  vote  and 
negative,  than  where  all  may  be  taken  away,  as  it  were,  at  one  blow, 
by  one  single  person's  vote ;  which,  happening  to  make  one  vote 
more  than  those  of  the  other  judgment,  this  one  man's  voice  carries 
with  it  the  destruction  of  any  man's  life  and  fortune,  and  of  the 
public  interest. 

710.  "  But  where  there  be  several  negatives,  in  the  several 
estates,  the  party  concerned  gains  new  opportunity  to  inform  the 
truth,  and  to  defend  himself;  and  the  matter,  whether  public  or 
private,  is  again  and  perhaps  more  thoroughly  considered  and 
weighed,  than  before  possibly  it  could  or  should  have  been.  If,  for 
example,  one  house  be  misinformed,  as  too  often  is  done ;  or  be 
mistaken  in  their  judgments,  which  is  possible,  because  they  are 
men  ;  the  other  house,  or  the  king,  the  thurd  estate,  may  be  better 
informed,  or  rectify  that  mistake  ;  and  thereby  do  right  to  the  per- 
son, who,  otherwise,  might  have  been,  contrary  to  justice,  ruined  * 
or  to  the  commonwealth,  which  otherwise  might  have  suffered 
prejudice. 

711.  "  But  without  these  several  negatives,  a  person  may  be  sur- . 
prised,  and  his  life  and  fortune  lost ;  or  the  whole  kingdom  suffer 
detriment,  by  the  resolution  of  a  supreme  council,  and  that  without 
redemption,  or  appeal ;  or  such  impositions  be  laid  upon  the  per- 
sons, estates,  and  consciences  of  men,  (whereof  some  examples,  and 
too  many,  have  been  felt,)  which,  in  case  of  several  negatives,  had 
not  been  done ;  and  which  have  deserved  second  thoughts.  And 
by  these  several  negatives,  is  prevented  the  arbitrary  power  of 
princes,  —  the  domineering  of  great  men,  —  and  the  insulting  of  in- 
ferior men  being  got  into  power,  which  of  all  other  grievances  is  the 
most  intolerable. 

712.  "  But  where  the  several  estates  have  several  negatives,  the 
greater  care  is  had,  by  each  of  them,  of  all  those  w^hose  conditions 


Chap.  L]  general  powers  of  legislation.  281 

are  nearest  to  them.  And  as  every  negative  is  an  additional  se* 
curity  for  the  freedom  and  safety  of  the  people,  so  the  more  delib- 
eration, debate,  and  disquisition  is  had,  by  several  judgments  and 
parts  of  supreme  councils,  the  more  ripe  and  perfect  their  laws  and 
judgments  will  be,  and  the  less  subject  to  any  just  exception,  and 
the  more  obeyed  by  those  whose  representatives  consented  to  them. 
Excellent  herein,  is  the  frame  and  constitution  of  our  parliament ; 
in  which  every  one  of  the  three  estates  hath  his  negative ;  the  king 
hath  his  negative ;  the  lords  have  theirs ;  and  the  commons  theirs. 
But  the  bishops  had  no  negative  ;  nor  the  knights  no  negative  ;  but 
all  the  lords  had  one ;  and  all  the  commons,  another ;  and  the  king, 
the  third."  i 

713.  The  three  branches  exercise  their  negative  upon  each  other 
in  a  different  manner ;  the  crown  has  a  single  negative  upon  bills 
that  have  been  agreed  upon  by  the  other  branches,  but  is  not 
authorized  to  originate  any  legislative  act,  (with  a  single  exception,) 
or  to  propose  amendments  or  alterations  to  such  as  come  from  the 
two  houses ;  whereas  each  of  the  two  houses  (with  the  exception 
of  money  bills  on  the  part  of  the  lords)  is  authorized  to  originate 
and  mature  measures  by  itself,  and,  when  its  concurrence  is  asked 
to  measures  originated  and  matured  by  others,  to  propose  amend- 
ments. 

714.  Besides  the  functions  of  the  three  branches,  which  are 
purely  and  exclusively  legislative,  each  of  them  is  invested  with 
others ;  the  crown  is  the  principal  executive  and  administrative 
power  ;  the  house  of  lords  is  a  judicial  court  of  eiTor  and  appeals  in 
the  last  resort,  having  also  original  and  exclusive  jurisdiction  of  im- 
peachments and  of  certain  offences  committed  by  peers ;  and  the 
house  of  commons  is  usually  called  the  grand  inquest  of  the  nation, 
in  determining  upon  and  preferring  impeachments  to  be  tried  at 
the  bar  of  the  lords. 


2.   Legislative  Powers  as  restricted  hij  Constitutional  Provisions  in 

the  United  States. 

715.    The  legislative  power,  which,  in  the  parliament  of  Great 

Britain,  is  unlimited  and  absolute,  restrained  only  by  the  nature  of 

the  subject-matter,  is  in  this  country  variously  regulated,  modified, 

and  limited  by  constitutional  provisions  ;    in  virtue  of  which  the 

udicial  tribunals  are  authorized  to  adjudge  all  acts  of  legislation, 

»  Whitelocke,  11.  339,  340,  341. 

24* 


282  LEGISLATIVE   ASSEMBLIES.  [PaRT   IV. 

which  transcend  the  powers  of  the  legislative  bodies  from  which 
they  emanate,  to  be  void  and  inoperative  as  being  unconstitu- 
tional. 

716.  The  several  subjects  of  these  provisions,  as  they  have  been 
developed  and  appUed  in  the  decisions  of  the  highest  judicial  tri- 
bunals, constitute  a  branch  of  jurisprudence  peculiar  to  this  coun- 
try, denominated  constitutional,  a  topic  altogether  too  copious  to 
be  embraced  in  this  work,  and  only  necessary,  for  the  present  pur- 
pose, to  be  briefly  alluded  to,  in  order  to  point  out,  or  to  lay  down, 
a  rule  for  determining,  if  possible,  the  precise  limits  and  boundaries 
of  the  legislative  power,  or  in  other  words  the  line  which  separates 
the  powers  conferred  from  those  withheld.  There  are  three  aspects, 
in  which  the  subject  presents  itself,  which  it  may  be  useful  to  con- 
sider ;  —  first,  the  powers  of  State  legislatures  under  the  constitu- 
tions of  the  several  States  ;  second,  the  powers  of  congress  under 
the  constitution  of  the  United  States  ;  and  third,  the  powers  of  the 
State  legislatures  as  affected  by  the  constitution  of  the  United 
States. 

717.  I.  In  the  constitutions  of  the  several  States,  the  legislative 
department  is  established,  and  power  conferred  upon  it,  in  general 
terms,  as  the  supreme  law  making  authority,  limited  only  by  the 
restraints  thereon  expressly  declared  in  the  instrument  itself,  and  by 
the  implied  prohibition  to  change  any  part  of  the  form  of  govern- 
ment thereby  established.  The  power  of  a  State  legislature,  there- 
fore, is  general,  and  unlimited,  and  extends  to  all  subjects  of  legis- 
lation, except  in  those  particulars  wherein  it  is  expressly  restrained 
as  above  stated.  Consequently,  when  a  question  arises,  whether  a 
given  subject  is  within  the  constitutional  power  of  a  State  legisla- 
ture, the  inquiry  should  be,  not  whether  it  is  conferred,  specifically, 
but,  whether  it  is  withheld,  in  terms,  or  by  necessary  implication. 
K  it  cannot  be  said,  affirmatively,  that  the  power  in  question  is 
withheld,  then  it  exists  under  the  general  grant.  If  the  inquiry 
leads  merely  to  a  doubt  of  the  power,  the  doubt  is  in  favor  of  its 
being  granted. 

718.  II.  In  the  constitution  of  the  United  States,  which  was 
established  by  the  citizens  of  the  several  States,  in  which  the  State 
legislatures  had  already  been  invested  with  the  sovereign  power  of 
legislation,  the  proceeding  is  directly  the  reverse  of  that  above 
stated.  Instead  of  conferring  legislative  power  upon  congress,  in 
general  terms,  and  then  restricting  the  grant  by  specific  provisions, 
which  mode,  besides  being  inconsistent  with  the  purposes  of  the 
federal  government,  would  have  superseded  the  legislative  powers 


Chap.  I.]  general  powers  of  legislation.  28a 

of  the  States,  the  grant  of  power  is  specific ;  so  that  congress  has 
no  powers  except  those  which  are  expressly,  or  by  necessary  impli- 
cation, conferred  upon  it.  Consequently,  when  a  question  arises, 
whether  a  given  subject  is  within  the  constitutional  power  of  con- 
gress, the  inquiry  should  be,  whether  that  power  is  conferred,  not 
whether  it  is  withheld.  If  it  cannot  be  said  affirmatively,  that  the 
power  in  question  is  conferred,  then  it  does  not  exist ;  if  the  inquiry 
leads  merely  to  a  doubt,  the  doubt  is  against  the  grant. 

719.  III.  In  regard  to  the  third  inquiry  above  suggested,  which 
relates  to  the  powers  of  the  State  legislatures,  as  affected  by  the 
constitution  of  the  United  States,  the  provisions  of  the  latter  oper- 
ate upon  the  former  in  two  ways,  first,  by  a  direct  prohibition  to 
legislate  upon  certain  subjects  at  all,  and  second,  by  means  of 
powers  which  supersede  the  exercise  of  the  same,  or  similar  powers 
on  the  part  of  the  State  legislatures ;  and,  in  reference  to  both,  the 
rules  above  stated  are  to  be  applied,  the  first  to  determine  whetljer 
a  given  power  would  exist  in  a  State  legislature,  independent  of 
the  constitution  of  the  United  States,  and  if  so,  second,  to  deter- 
mine whether  the  power  in  question  is  taken  away  by  the  latter. 


Section  II.    Powers  of  the  Members  individually. 

720.  There  are  two  distinct  fundamental  forms,  in  which  a  legis- 
lative assembly  may  be  supposed  to  exist,  namely,  as  an  assem- 
blage of  the  deputies  of  the  several  constituencies,  by  which  they 
are  elected,  to  treat  of  and  determine  certain  matters  wherein  they 
have  a  common  interest,  and  thereupon  to  form  a  compact  \rith  one 
another  concerning  the  same,  binding  upon  those  whom  they  repre- 
sent ;  or  as  a  meeting  of  the  representatives,  not  of  the  particular 
constituencies,  but  of  the  whole  people  in  their  legislative  capacity, 
and  authorized  to  act  for  and  to  bind  them,  within  the  scope  of  the 
powers  which  they  have  seen  fit  to  confer  upon  the  supreme  legis- 
lative department.  The  first  idea  probably  lies  at  the  foundation 
of  the  British  house  of  commons ;  but  for  a  very  long  period,  that 
body  has  ceased  to  be  regarded  merely  as  a  collection  of  deputies,^ 
and  has  been  looked  upon  as  a  branch  of  the  sovereign  legif^lative 
power ;  and  such  also  is  the  character  which  belongs  to  legislative 
bodies  in  this  country. 

721.  "  The  citizens  and  burgesses,"  says  Whitelocke,-  "  are  to 
have  the  same  power  with  the  knights ;  and  the  knights  ^\-ith  them, 

1  Hans.  (3)  U.  1090.  «  Whitelocke,  II.  329,  330. 


284  LEGISLATIVE    ASSEMBLIES.  [PaRT  IV 

when  they  are  met  in  parliament.  They  are  not  citizens  and  bur- 
gesses only  for  the  places  for  which  they  serve ;  but  they  are  then 
members  of  parliament,  serving  for  every  county,  city,  and  borough, 
in  England,  for  the  whole  kingdom ;  and  are  obUged  by  the  duty 
of  parliament  men,  to  take  equal  care  of  the  good  and  safety  of 
every  other  county,  city,  and  borough  of  England,  as  they  are  to 
take  of  those  which  particularly  chose  them.  So  that  now  they 
are  become  '  knights,  citizens,  and  burgesses  of  England.'  And  a 
defect  of  power  in  them,  or  an  improvident  choice  of  them,  may 
hinder  the  business  of  the  whole  kingdom,  wherewith  every  one  of 
them  is  intrusted." 

722.  It  follows,  in  the  first  place,  from  this  principle,  that  every 
member  represents  and  binds  both  himself  and  his  feUows ;  or,  as 
the  same  thing  is  more  fuUy  stated  by  the  author  just  quoted:^  — 
"  It  is  the  wisdom  of  our  law,  that  acts  of  parliament  are  equally 
binding  to  the  makers  of  them,  as  to  the  rest  of  the  people ;  and, 
though  the  knights  of  the  shire  do  represent  all  the  commonalty  of 
the  county,  and  bind  them  all  by  their  public  resolutions ;  yet  are 
they  not  exempt  themselves  from  the  force  of  those  laws  which 
are  made  by  them ;  but  are  equally  engaged  to  submit  to  them, 
and  obey  them,  as  those  whom  they  represent  ought  to  do.  If  they 
[the  commons]  grant  a  tax  upon  the  people,  they  themselves  must 
pay  their  share  of  it ; .  if  they  make  a  severe  law,  they  themselves, 
as  much  as  others,  are  liable  to  the  penalties  thereof.  They  can- 
not prejudice  the  people's  rights  and  liberties,  but  they  prejudice 
their  own.  They  are  empowered  for  themselves,  as  weU  as  for  the 
commonalty  of  the  county ;  and  shall  taste  themselves,  as  well  as 
others,  of  the  good  or  evil  fruits  of  their  consultations ;  and  there- 
fore will  be  the  more  provident  and  wary  in  their  determinations." 

723.  Secondly,  the  power  conferred  by  the  election  is  the  entire 
power  possessed  by  the  electors,  and,  when  once  conferred,  is 
irrevocable.  Whitelocke,  in  the  following  paragraph,  while  he 
waives  the  discussion  of  these  propositions,  considers  them  as  estab- 
lished.^ "  The  electors  in  each  county,  city,  and  borough,  are  those 
who  give  the  power,  and  parliamentary  authority  to  their  deputies ; 
and  they  are  by  this  writ  to  give  full,  and  sufficient  power,  for  the 
despatch  of  the  great  affairs  to  be  treated  on.  There  must  be  no 
defect ;  that  is,  their  knights,  citizens,  and  burgesses  must  want  no 
power.  I  shall  not  hereupon  discourse  of  that  power  in  the  elec- 
tors, to  give  more  or  less  authority  and  power  to  their  deputies,  as 

»  Wliitelocke,  II.  87.  *  Whitelocke,  II.  306,  307. 


Chap.  I.]  general  powers  of  legislation.  285 

the  electors  please ;  nor,  of  that  point,  whether  the  authority  bemg 
given  by  them,  it  be  not  in  their  power  to  recall  the  same  again 
when  they  think  fit ;  in  case  the  actings  of  their  deputies  be  judged 
by  them,  to  be  contrary  to  their  good.  Such  questions  as  these, 
and  of  the  power  in  the  people,  are  never  stirred  without  some 
damage  and  trouble  likely  to  arise  therefrom.  It  is  nowhere  to 
be  found,  that  these  questions  have  been  determined ;  or,  such 
powers  executed,  by  the  electors,  only,  by  their  indenture,  to  give 
full  authority  to  their  deputies ;  who  have  been  also  so  careful,  not 
to  give  distaste  to  their  electors,  that  Ihey  have  answered,  upon 
new  affairs  to  them  propounded,  that  '  they  were  ready  to  aid  the 
king's  estate ;  only,  in  a  new  devise,  they  durst  not  agree  without 
further  conference  with  their  county,  from  whom  they  received 
their  authority  ;  and  desired  to  have  their  pleasure  in  the  particular 
execution  of  it.' " 

724.  Thirdly,  the  giving  of  pledges  or  promises  by  members, 
before  their  election,  in  regard  to  their  conduct  afterwards,  is  incon- 
sistent with  their  public  duties :  — "  The  members  of  parliament 
are  not,  beforehand,  to  make  any  compacts,  or  undertakings,  what 
they  will  do,  or  not  do.  But  what  shall  be  propounded  among 
them  when  they  are  met  together,  —  that  is  to  be  considered  by 
them,  —  that  they  are  to  deliberate  upon.  And  after  a  free  debate 
in  full  parliament ;  as  their  judgment  shall  be  swayed  by  reason, 
and  as  God  shall  put  it  into  their  hearts,  so  are  they  to  ordain ; 
and  therefore  it  is  said,  '  shall  happen  to  be  ordained.'  The  mem- 
bers come  not  to  parhament  prepared,  or  bespoken  beforehand ; 
but,  as  free  counsellors,  to  give  then-  votes,  as  their  reason  shall  be 
satisfied ;  as  they  judge  will  most  conduce  to  public  good.  And 
the  word  '  ordain '  is  proper  for  all  their  determinations ;  either  of 
advice,  or  which  are  judicial,  or  legislative.  We  find  the  word 
'  ordinances '  often  used  in  our  books  of  law,  and  in  the  records  of 
parhament,  in  several  senses."  ^ 

725.  Lastly,  it  foUows  from  the  nature  of  a  legislative  assem- 
bly, as  above  stated,  that  each  individual  member  has  power  to 
participate  as  such  in  every  thing  which  the  assembly  itself  may 
do  as  an  aggregate  body :  —  "It  is  the  great  privilege  of  the  parlia- 
ment of  England,  that  every  one  of  the  members  thereof  hath  the 
Uberty  of  proposing,  in  that  assembly,  what  he  judgeth  may  be  fit 
for  the  public  good.  He  may  '  do  as  well  as  consent.'  He  may 
complain  of  any  pubKc  or  private  grievance ;  and  propound  reme- 

1  Whitelocke,  11.  294. 


286  LEGISLATIVE   ASSEMBLIES.  [PaRT    IV 

dies.      He   may   present   petitions   for   others ;    or   offer   bills   foi 
repealing  or  altering  old  laws,  or  for  making  new  ones."*! 

7:26.  Such  is  the  general  nature  of  the  powers  and  functions  of 
the  individual  members  of  a  legislative  assembly  as  admitted  both 
in  England  and  in  this  country.  But  a  right  has  been  asserted 
and  contended  for  in  England,  as  well  as  here,  on  the  part  of  the 
immediate  constituents  of  members,  to  give  directions  or  instruc- 
tions to  their  respresentatives,  how  they  shall  proceed  and  vote  in 
reference  to  particular  topics  or  questions.  The  right  of  instruction, 
as  it  is  called,  appears  to  have  been  generally  admitted  in  England, 
and  obedience  rendered  accordingly,  by  individual  members  to 
whom  instructions  have  been  addressed ;  ^  but  obedience  has  been 
sometimes  refused ;  and  the  right  itself  denied,  by  writers  on  politi- 
cal and  parliamentary  law,  as  absolutely  binding  upon  the  acts  and 
votes  of  members.  The  doctrine  on  this  subject,  as  generally  if  not 
universally  admitted  in  England,  is  thus  stated  by  Mr.  Speaker 
Onslow :  — "  Every  member,  as  soon  as  he  is  chosen,  becomes  a 
representative  of  the  whole  body  of  the  commons,  without  any  dis- 
tinction of  the  place  from  whence  he  is  sent  to  parliament.  Instruc- 
tions, therefore,  from  particular  constituents  to  their  own  members, 
are  or  can  be  only  of  information,  advice,  and  recommendation, 
(which  they  have  an  undoubted  right  to  offer,  if  done  decently ; 
and  which  ought  to  be  respectfully  received  and  well  considered,) 
but  are  not  absolutely  binding  upon  votes,  and  actings,  and  con- 
science, in  parliament."  ^ 

727.  In  this  country,  the  right  of  instruction  has  been  contended 
for,  on  the  one  hand,  independent  of  constitutional  provision,  and, 
on  the  other,  has  been  denied  to  exist,  even  where  it  is  expressly 
conferred,  in  any  other  sense,  than  as  declaring  the  right  of  con- 
stituents to  make  known  their  views  and  wishes  to  their  represent- 
atives. Both  propositions  are  equally  untenable.  A  right  of  instruc- 
tion, to  which  the  duty  of  obedience  is  not  correlative,  is  entirely 
inconsistent  with  the  constitution  and  functions  of  an  independent, 
sovereign  legislative  power;  and  it  is  equally  impossible  to  suppose 
that  the  right  of  instruction  is  restricted,  in  those  of  the  constitutions 
in  which  it  is  declared,  to  signify  a  mere  expression  of  opinion,  on 
the  part  of  constituents,  with  which  representatives  are  at  liberty  to 

1  Whitelocke,  II.  181.  »  Hatsell,  II.  76,  n.     See  also  Blackstone's 

2  Commons  Debates,  XIILIS,  115;    Same,      Comm.  L  159;  Fourth  Inst.  14;  Sydney  on 
XIV.  1;  Pari.  Reg.  IIL  216,  228,  399;  Same,      Government,  §  44,  p.  45L 

XVn.  254,  255,  256;    Same,  XXI.  282,283; 
Same,  X.  (2)  159;  Same,  XU.  (2j  331. 


Chap.  L]  general  powers  of  legislation.  287 

comply  or  not  at  their  pleasure.  It  may  be  stated,  therefore,  in 
regard  to  t|ie  right  of  instruction  in  this  country,  that  it  exists  onl} 
in  those  States  in  which  it  is  expressly  reserved  by  constitutional 
provision ;  and  that  where  it  so  exists,  it  is  an  absolute  right,  to  be 
implicitly  obeyed,  when  exercised,  so  far  as  it  is  authoritatively 
expressed.^ 

728.  Where  the  right  of  instruction  exists  by  constitutional  pro- 
vision,2  or  is  admitted  as  obligatory,  it  is  important  to  ascertain  in 
what  manner  it  may  be  exercised,  for  which  a  few  remarks  will  be 
sufTicient.  In  the  first  place,  if  the  constituency  Is  a  municipal  cor- 
poration, competent  to  express  itself  by  a  corporate  act,  that  is 
clearly  the  only  authentic  mode  of  giving  binding  instructions  to  its 
representatives  ;  so  if  the  constituency  is  a  sovereign  State,  as  is 
the  case  with  reference  to  the  senate  of  the  United  States,  it  can 
only  give  binding  instructions  by  means  of  a  legislative  act,  passed 
in  the  ordinary  form.  K  the  constituency  is  not  a  municipal  cor- 
poration, as  is  the  case  with  the  greater  number  of  districts  for  the 
election  of  representatives  in  the  congress  of  the  United  States, 
there  is  no  other  mode  of  instructing  their  representatives  than  by 
the  signatures  of  individuals,  or  by  then*  attendance  at  a  public 
meeting  called  for  the  purpose.  In  a  case  of  this  kind,  the  mem- 
ber, to  whom  the  instructions  are  addressed,  must  determine  for 
himself,  whether  they  express  the  opinions  of  a  majority  of  the  con- 
stituency, (for  no  smaller  number  certainly  can  be  competent  to 
instruct,)  and,  therefore,  whether  they  are  to  be  implicitly  obeyed, 
or  only  respectfully  considered.  Lastly,,  if  the  instructions  are  suffi- 
ciently expressed,  and  the  obligation  of  obedience  exists  or  is  recog- 
nized, the  member  addressed  has  no  alternative  but  to  obey,  and 
cannot  relieve  himself  from  his  obligation  by  resigning  his  seat ;  a 
proceeding  which,  in  most  cases,  would  as  effectually  destroy  the 
right  of  instruction  as  direct  disobedience. 

7:29.  It  is  the  right  of  every  member  of  a  legislative  assembly, 
and  essential  to  the  proper  transaction  of  the  business,  to  have  the 
orders  of  the  assembly  enforced  without  delay  or  debate  when 
infringed.  The  orders  may  be  waived  or  suspended  in  virtue  of 
a  rule  or  vote  to  that  effect,  but  whilst  they  remain  in  force,  every 

^  See,  on  the  right  of  instruction,  Lieber's  Indiana,   Illinois,    Michigan,    Arkansas,    and 

Political  Ethics,  Part  II.  Book  VII.;  American  California.     Whether  and  to  what  extent,  it 

Review,  (1S12,)  IV.  137.  is  admitted  as  obligatory,  in  the  other  States, 

2  The  right  of  instruction  is  recognized  in  in   the   constitutions   of  which  it  is  not  in- 

the  constitutions  of  Maine,  New  Hampshire,  eerted,  is  not  known  to  the  writer. 
Vermont,    Massachusetts,    Tennessee,    Ohio, 


288  LEGISLATIVE   ASSEMBLIES.  [PaRT   IV 

« 

member  may  require  their  observance.  A  frequent  example  of  the 
practical  assertion  of  this  right  occurs  in  the  British  parliament 
when  the  house  is  cleared  of  strangers.  It  is  a  standing  rule  of 
both  houses,  that  strangers  shaU  not  be  present  in  the  house  when 
it  is  sittmg,  and  that  aU  persons  oflfending  against  this  order  shall 
be  taken  into  custody.  Notwithstanding  this  rule,  strangers  are 
constantly  present,  and  accommodations  are  even  provided  for 
them.  But  this  infraction  of  the  rule  takes  place  merely  by  suffer- 
ance ;  it  is  not  even  by  the  indulgence  of  the  house ;  strangers  are 
not  supposed  to  be  present,  until  their  presence  is  noticed  by  some 
member ;  but  when  this  is  the  case,  and  the  infraction  of  the  rule 
becomes  officially  apparent,  it  must  be  enforced,  without  delay  or 
debate,  upon  the  demand  of  any  member.  So,  if  a  stranger  should 
happen  to  be  counted  with  one  side,  on  a  division,  if  any  member 
requires  it,  there  must  be  a  new  division.  So,  when  a  motion  has 
been  made,  seconded,  and  proposed  by  the  speaker  as  a  question,  it 
must  be  decided  by  the  house,  according  to  the  rrde  of  order,  and 
the  mover  is  not  at  liberty  to  withdraw  it,  so  long  as  any  member 
insists  upon  its  being  put.  It  may  be  said,  therefore,  that  when  a 
thing  can  only  be  done  by  general  consent,  every  individual  mem- 
ber may  prevent  it  from  being  done,  by  interposing  an  objec- 
tion. 

730.  It  may  be  inferred,  from  what  has  been  previously  stated, 
not  only  that  the  members  of  a  legislative  assembly  are  perfectly 
equal  among  themselves,  but  that  each  had  a  right  to  participate 
in  aU  the  proceedings  of  the  assembly  to  which  he  belongs.  This 
principle  admits  in  this  country  of  three  exceptions,  first,  in  the  case 
of  those  presiding  officers,  who  preside  in  virtue  of  some  other 
office  to  which  they  are  elected  or  appointed,  and  who  only  par- 
ticipate in  the  proceedings  of  the  assemblies  over  which  they  pre- 
side, by  presiding  and  giving  a  casting  vote  therein ;  secondly,  in 
the  case  of  members  under  arrest  or  otherwise  suspended  from  their 
functions,  and,  thirdly,  in  the  case  of  those  members  of  the  house 
of  representatives  in  congress,  who,  under  the  name  of  delegates,  are 
elected  by  and  represent  territories  which  are  not  yet  organized  aa 
States.^ 

1  These  exceptions  have  been  already  sufficiently  considered  ;  see  ante,  §  280, 281,  282. 


Chap.  II.]  relation  of  the  several  branches.  289 


CHAPTER    SECOND. 

OF   THE   RELATION   OF   THE   DIFFERENT   BRANCHES  OF  THE  LEGIS- 
LATIVE  DEPARTMENT   TO   ONE  ANOTHER. 

731.  According  to  the  constitution  of  parliament,  as  above  de- 
lineated, and  of  those  of  other  similarly  constituted  legislative 
bodies,  two  principles  evidently  lie  at  the  foundation  of  aU  its  pro- 
ceedings, namely,  that  the  concurrence  of  each  of  the  branches  of 
wliich  it  is  composed  is  necessary  to  the  doing  of  every  legislative 
act ;  and  that,  in  coming  to  such  agreement  or  concurrence  each  of 
the  several  branches  is  entitled  to  proceed  with  entire  freedom,  and 
in  perfect  independence  of  both  the  others.  From  these  two  princi- 
ples, it  follows,  first,  that  each  of  the  three  branches  should  do  every 
thing  in  its  power  to  promote,  and  should  refrain  from  every  thing 
that  might  prevent  a  good  correspondence  and  harmony  between 
the  several  branches ;  second,  that  each  should  do  all  in  its  power 
to  facilitate  the  proceeding  of  the  others,  in  a  parliamentary  way ; 
and,  third,  that  each  should  abstain  from  aU  such  interference  with 
the  proceedings  of  the  others,  as  may  tend  to  injure  their  freedom 
and  independence,  by  exerting  any  undue  influence  upon  them  in 
respect  to  any  pending  measure.  These  principles  are  equally 
applicable  to  the  legislative  assemblies  of  this  country.  The  topics 
thus  suggested  wdl  form  the  subject  of  the  three  following  sections. 


Section  I.     Of  the  Good  Correspondence  and  Harmony  which 

OUGHT   TO   prevail   BETWEEN  THE   DIFFERENT   BRANCHES. 

732.  In  order  to  the  efficient  action  of  parliament,  as  a  collective 
body,  to  which  the  concurrence  of  aU  its  members  is  necessary, 
nothing  is  or  can  be  more  essential  than  the  existence  of  harmony 
and  a  good  correspondence  among  the  several  branches.  In  order 
to  insure  these  desirable  objects,  it  is  necessary  that  each  branch 
should  on  all  occasions  pursue  the  accustomed  methods  of  proceed-  ' 
ing,  and  observe  the  usual  ceremonies  in  whatever  communications 
take  place  between  the  several  branches;  that  they  should  respec- 
tively abstain  from  every  proceeding  inconsistent  with  the  legisla- 

25 


290  LEGISLATITE   ASSEMBLIES.  [PaRT   IV. 

tive  prerogatives  of  the  crown,  or  the  privileges  of  either  house ; 
that  the  members  of  the  two  houses  should  respectively  abstain 
from  all  offensive  and  unparHamentary  remarks,  either  in  debate  or 
in  any  other  parliamentary  proceeding,  of  or  towards  the  other  or 
its  members,  or  towards  the  executive ;  and  that  the  two  houses 
should  extend  to  each  other  and  their  members  respectively  all  the 
accustomed  courtesies  and  civihties,  which  are  due  from  one  equal 
to  another. 

733.  It"  either  of  the  two  branches  has  any  ground  to  complain 
of  the  proceedings  of  the  other,  for  any  of  the  causes  above  men- 
tioned, the  course  of  proceeding  is  to  make  a  representation  of  the 
matter  of  the  complaint  by  means  of  a  conference,  and  to  leave  to 
the  other  house  to  do  what  it  thinks  proper  in  the  premises;  as 
neither  house  has  any  power  over  the  other  or  its  members,  except 
that  which  results  from  the  justice  of  its  demands,  and  the  proper 
temper  and  spmt  with  which  they  are  made.  It  may  be  added,  as 
essential  to  a  good  correspondence  between  the  several  branches, 
that,  when  a  member,  officer,  or  servant  of  either,  has  been  guilty 
of  any  offence  either  against  the  other  house,  or  against  its  mem- 
bers, which  would  be  punishable  by  the  latter  if  committed  by  one 
of  its  own  members,  officers,  or  servants,  it  is  the  duty  of  the  house 
to  which  such  offender  belongs,  upon  being  apprised  of  the  fact,  to 
take  proper  measures  to  inquire  into  and  punish  the  offence  in  a 
proper  manner. 


Section  II.    Of  the  Duty  of  each  Branch  to  facilitate  the 

Proceedings  of  the  Others. 

734.  In  the  course  of  the  proceedings  in  one  house,  it  frequently 
becomes  necessary  to  have  the  attendance  of  the  members  or  officers 
of  the  other  as  witnesses,  or  to  obtain  a  knowledge  of  its  proceed- 
ings, or  to  have  the  evidence  of  some  one  in  its  custody.  In  all 
such  cases,  the  former,  as  it  cannot  command,  or  exercise  any 
power,  makes  its  request  to  the  latter;  and,  accordingly,  when- 
ever any  such  request  is  made  in  a  parliamentary  manner,  it  is  the 
duty  of  the  house  so  applied  to,  to  grant  the  request. 

735.  The  attendance  of  the  members  or  officers  or  persons  in  the 
'  custody  of  one  house,  in  the  other,  as  witnesses,  will  be  treated  of 

in  connection  with  that  of  witnesses  generally.  In  regard  to  the 
communication  of  documentary  evidence,  upon  which  bills  or  other 
measures,  agreed  to  in  one  house  and  sent  to  the  other  for  concur- 


Chap.  II.]        RELATio^  uf  the  several  branches.  29] 

rence,  is  founded,  it  is  not  the  custom  ^  to  transmit  it  with  the  bill, 
but  if  the  house  to  which  the  bill  is  sent  desire  to  have  it,  that 
house  sends  to  the  other  house  for  it,  which  transmits  it  accord- 
ingly. This  proceeding  may  take  place  eilher  by  message,  or  by 
conference  ;  which  latter  is  the  more  proper  mode.  In  this  country, 
it  is  believed  to  be  the  practice,  generally,  to  transmit  the  evidence, 
in  the  first  instance. 

736.  If  either  house  of  parliament  desires  to  know  what  takes 
place  in  the  other,  with  reference  to  any  particular  measure,  the 
information  can  be  obtained  (a  committee  being  appointed  for  the 
.purpose)  from  the  votes  and  proceedings,  which  are  now  printed 
and  distributed  from  day  to  day  in  both  houses.^  Formerly,  if  the 
house  of  commons  had  occasion  and  desired  to  know  the  proceed- 
ings of  the  house  of  lords,  in  which  the  votes  were  not  printed  at 
all,  and  the  journals  not  untU  some  time  after  the  termination  of  the 
session,  the  course  was  to  appoint  a  committee  to  search  the  lord's 
journals,  with  reference  to  the  matter  in  question,  and  to  report 
the  proceedings  to  the  house.^  The  journals  of  the  lords  being 
a  record  to  which  every  one  may  resort  for  information,  the  com- 
mittee of  the  commons  had  a  right  to  make  such  inspection,  and  it 
was  of  course  the  duty  of  the  clerk  or  officer  having  the  custody  of 
the  journals,  or  of  the  minutes  from  which  the  journals  were  to  be 
made  up,  to  afford  the  committee  the  needful  facilities  to  accom- 
plish their  mission.  In  modern  times,  the  proceedings  of  the  two 
houses  of  the  British  parliament,  as  well  as  those  of  our  legislative 
assemblies,  are  practically  so  far  public,  that  what  is  done  in  one 
branch,  with  reference  to  any  parliamentary  matter,  is  commonly 
sulliciently  known  in  the  other  without  searching  the  jom-nals  of 
the  former. 

Section  III.     Of   the    Interference   of  any   of   the   Branches 
IN  THE  Proceedings  of  the  Others. 

737.  As  it  is  highly  expedient,  for  the  due  preservation  of  the  privi- 
leges of  the  separate  branches  of  the  legislature,  that  neither  should 
encroach  upon  the  other;  it  is  equally  important  that  neither 
should  interfere  in  any  matter  depending  in  the  other,  so  as  to  pre- 
clude, or  even  influence,  that  freedom  of  debate  or  of  action,  which 
is  essential  to  a  free  council;  and,  therefore,  neither  the  king,  nor 
lords,  nor  commons,  are  to  take  notice  of  any  bills,  or  other  matters 

'  Sonic times   it   appears  to  be  sent;     Pari.      ^  j[.iy^  log^  200. 
Reg.  (2.)  XVm.  27, 30,  33.  »  See  Hatseli,  III.  32,  33. 


292  LEGISLATIVE   ASSEMBLIES.  [PaRT    IV. 

depending,  or  of  votes  that  have  been  given,  or  of  speeches  that 
have  been  made,  by  the  members  of  either  of  the  other  branches, 
until  such  proceedings  have  been  communicated  to  them  in  the 
usual  and  parliamentary  manner.^ 

738.  For  the  same  reason,  it  is  irregular  and  disorderly  for  a 
member  to  make  use  of  the  name  of  the  sovereign  in  debate,  for 
the  purpose  of  influencing  the  decision  of  the  house,  In  this 
country,  it  is  equally  irregular  and  disorderly  to  allude  to  the  execu- 
tive department,  for  the  same  purpose,  even  in  those  States  where 
the  executive  has  no  veto  power. 

739.  So  it  is  unparliamentary,  in  one  house,  to  inform  the  other, 
to  which  a  bUl  or  other  measure  is  sent  for  concurrence,  by  what 
majority  it  passed  in  that  branch ;  though  where  a  bill  passes  by 
an  unanimous  vote,  in  which  case  the  fact  appears  in  the  indorse- 
ment by  the  clerk,  it  is  not  considered  irregular  thus  to  notify  the 
house  to  wMch  it  is  sent  of  the  fact.^  So  it  is  equally  irregular 
in  the  house,  from  which  a  bill  or  other  measure  is  sent  for  con- 
currence, to  call  on  the  house  to  which  it  is  sent  to  be  informed 
of  the  reasons,  why  that  house  has  proceeded  in  the  particular 
manner,  in  which  it  has  proceeded,  or  why  it  has  not  proceeded  at 
aU. 

740.  But,  it  is  no  improper  interference  for  one  house  to  renlind 
the  other  of  bills  which  have  been  sent  to  it  for  concurrence ;  or  for 
one  house  to  request  the  other  to  remain  sitting,  in  order  that  the 
first  may  have  an  opportunity  to  send  a  message  to  it ;  both  which 
proceedings  are  of  frequent  occurrence. 


CHAPTER  THIRD. 

OF  THE  EVIDENCE  AND  INFORMATION  ON  WHICH  PARLIAMENTARY 

PROCEEDINGS  ARE  FOUNDED. 

741.  This  chapter  will  treat,  in  the  first  place,  of  the  nature  and 
applicability  of  the  evidence,  upon  which  a  parUamentary  proceed- 
ing is  grounded ;  and,  secondly,  of  some  particular  kinds  of  evidence 
which  are  much  in  use  in  legislative  assemblies.     The  latter  consist 

1  Hatsell,  IL  356.  »  Pari.  Reg.  XV.  238. 


Chap.  ITT.]  evidence  and  information.  f;93 

mainly  of  the  evidence  of  common  fame,  and  of  the  statements  of 
members. 


Section  I.     Of   the    Nature    of   the   Evidence  upon   which   a 
Parliamentary  Proceeding  may  be  founded. 

742.  The  proceedings  of  a  legislative  assembly  frequently  render 
it  necessary  to  institute  inquiries  into  matters-of-lact,  and,  of  course, 
to  receive  and  judge  of  the  various  kinds  of  evidence  upon  which 
human  conduct  is  predicated,  and  which  may  be  submitted  to  its 
consideration.  In  the  every-day  affairs  of  life,  and  in  reference  to 
matters  in  which  their  own  interests  are  alone  involved,  men  act 
upan  every  kind  of  evidence,  which  has  any  even  the  slightest 
tendency  to  induce  belief.  But  in  regard  to  affairs  in  which  par- 
ties are  adversely  interested,  and  in  which  there  are  contlicting 
rights  and  claims  to  be  adjusted,  the  law  has  wisely  provided,  that 
only  such  evidence  shall  be  received,  and  under  such  circumstances 
as  shall  afford  reasonable  security  both  against  designed  falsifica- 
tion and  unintemional  mistake.  Between  the  highest  kind  of  this 
evidence,  and  the  lowest  of  that  before  alluded  to,  there  is  of  course 
an  infinite  diversity  of  degrees  of  proof,  ranging  from  the  one 
extreme  to  the  other ;  all  of  which  are  receivable  and  entitled  to 
consideration  in  parliamentary  proceedings,  according  to  the  nature 
of  the  subject-matter,  to  which  the  evidence  is  to  be  appHed.^ 


Section  IT.     How  the  different   kinds    of  Evidence   are 

applicalle. 

743.  The  rules  of  evidence  by  which  courts  of  justice  are  gov- 
erned, and  by  which  their  proceedings  are  regulated,  in  the  inves- 
tigation of  the  cases  which  come  before  them,  make  a  part  of  the 
civil  right  of  the  citizens,  as  much  as  the  rules  regulating  the  acqui- 
sition, the  enjoyment,  or  the  transmission  of  property,  or  which 
govern  any  other  matter  of  civil  right ;  and,  when  a  question  of  the 
same  nature  is  pending  in  the  legislature,  involving  private  interests 
oply,  no  good  reason  can  be  assigned  why  the  rules  of  evidence 
should  not  be  the  same.  It  would  seem  reasonable  therefore  to 
regard  it  as  a  rule  of  parliamentary  practice,  that  when  the  private 
interests  of  individuals  are  the  subject  of  investigation,  or,  in  other 

1  See  also  Conj;.  Globe,  XVIII.  653. 

25* 


294  LEGISLATIVE   ASSEMBLIES.  [PaKT   IV 

words,  where  the  mvestigation  is  a  judicial  one,  and  so  far  as  it  is 
of  that  character,  the  same  or  analogous  rules  of  evidence  should 
be  applied,  as  would  be  observed  in  the  investigation  of  similar 
interests  in  any  of  the  courts  of  law  or  equity ;  and  this  appears  to 
be  the  rule,  which  has  prevailed  in  modern  times.  On  the  occasion 
of  what  is  called  the  Queen's  trial,  which  took  place  on  a  bill  of 
pains  and  penalties  pending  in  the  house  of  lords,^  the  rules  of 
evidence  were  strictly  observed.^ 

744.  Where  the  subject  under  investigation  is  not  of  a  judicial 
nature,  no  other  rule  can  be  given  as  to  the  kind  or  degree  of  evi- 
dence to  be  required,  than  that  it  should  be  such  as  to  satisfy  the 
mind  and  conscience  of  individual  members,  and  afford  them  suffi- 
cient ground  for  belief  and  action,  in  reference  to  their  own  private 
affairs. 


Section  III.     Of  the  Evidence  of  Common  Fame. 

745.  In  the  earlier  periods  of  parliamentary  history,  when  it  was 
more  common  than  it  has  since  been  to  institute  inquiries  into  the 
conduct  of  high  officers  of  state,  the  evidence  of  common  fame  or 
report  was  admitted,  as  sufficient  ground  for  an  inquiry,  though 
not  for  a  condemnation ;  provided  it  "  was  a  general  report  or  voice 
of  neighborhood,"  and  not  a  mere  "rumor  which  is  a  particular 
assertion  from  an  uncertain  author ; "  and  provided  also  that  it  was 
not  a  "  reputation  or  fame  upon  a  generafity  "  but  "  upon  a  particu- 
lar specification."  ^  The  evidence  of  common  fame,  thus  defined 
and  restricted,  seems  proper  to  be  received  for  the  purpose  merely 
of  founding  an  inquiry  upon  it ;  and  such  seems  to  be  the  effect 
which  has  been  attributed  to  it  in  more  recent  times. 


Section  IV.     Of  the  Statements  of  Members. 

746.  The  other  source  of  evidence,  to  which  allusion  was  made, 
is  the  statements  of  members,  not  as  witnesses,  but  as  members, 
and  upon  their  responsibility  as  such.  These  statements  are  always 
received  as  worthy  of  credit,  and  are  acted  upon  accordingly  wheal 
uncontradicted.'*  What  a  member  states  of  his  own  knowledge 
is  of  coiirse  entitled  to  at  least  as  much  credit  as  if  it  came  from 

1  Broderip  &  Bingham,  II.  287.  ^  Whitelocke,  L  471. 

2  Hans.  (1)  Vn.  518,  519.  *  Hans.  (1)  XIL  655. 


Chap.  III.]  evidence  and  infokmation.  295 

the  mouth  of  a  witness,  but  the  statements  of  members  are  not  con- 
fined to  matters  and  things  within  their  own  knowledge ;  whatever 
they  have  derived  from  other  sources  they  are  ec[ually  at  liberty  to 
state  ;  and  it  is  for  the  house  to  judge,  in  each  particular  case,  what 
credit  is  due  to  the  statement;  it  is  not  always  to  be  received 
merely  because  it  comes  from  a  member ;  neither  is  it  to  be  rejected 
because  it  is  the  opinion  oi;  judgment  of  a  member  formed  upon 
exterior  evidence,  and  not  a  matter  within  his  own  personal  knowi- 
edge.  The  statements  of  members  are  constantly  received  and 
acted  upon  in  a  great  variety  of  cases.  In  making  statements, 
which  are  to  be  acted  upon,  members  are  responsible  to  the  house, 
and  liable  to  censure  and  punishment  for  any  culpable  misrepre- 
sentation. 


Section  V.     Of  other  Sources  of  Evidence. 

747.  In  addition  to  what  may  properly  be  called  evidence,  namely, 
that  which  is  obtained  by  means  of  an  inquiry  instituted  by  the 
house,  or  brought  forward  by  a  party,  aU  the  information  of  every 
description,  which,  in  any  way,  comes  into  the  possession  of  the 
house,  may  be  regarded  as  evidence.  Messages  from  the  executive, 
either  at  the  commencement  or  in  the  course  of  the  session, —  docu- 
ments from  the  same  source, —  returns  fr-om  public  officers  or  com- 
missioners, either  in  pursuance  of  law,  or  of  the  orders  of  the  house, 
—  constitute  evidence  upon  which  legislative  proceedings  may  be 
founded.  In  regard  to  the  credit  which  may  be  due  to  evidence  of 
this  sort,  no  general  rule  can  be  given.  The  house  must  judge  in 
each  individual  case. 

748.  It  frequently  happens,  that  documents  received  by  one 
house  from  extraneous  sources,  are  communicated  to  the  other, 
either  at  its  request,  or  voluntarily  on  the  part  of  the  former.  Such 
papers  are,  of  course,  to  be  judged  of  by  the  house  to  which  they 
are  sent,  according  to  their  nature,  and  to  the  source  from  which 
they  emanate  ;  they  derive  no  additional  weight  from  the  medium 
tlu-ough  which  they  come. 

749.  The  minutes  of  the  evidence  taken  by  one  house,  upon 
which  a  bill  or  other  measure  sent  to  the  other  for  concurrence  is 
founded,  are  not  unfrcquently  sent  to  the  latter,  cither  \\dth  the  bill 
or  measm-e  in  question,  or  at  the  request  of  that  house.  Li  the 
latter  case,  the  minutes  so  sent  become  evidence  in  the  house  to 
which  they  are  sent;  in  the  latter,  they  are  looked  upon  not  aa 


296  LEGISLATIVE    ASSEMBLIES.  [PaRT   IV 

evidence  which  may  be  read  and  considered  as  such,  but  only  in 
the  light  of  an  index  or  memorandum  of  the  names  of  witnesses, 
and  of  the  statements  made  by  them,  to  assist  the  house  in  its 
examination.^ 

750.  To  the  head  of  information,  introduced  for  the  purpose  of 
aiding  the  house  in  its  deliberations,  belong  the  inquiries,  which 
are  allowed  to  be  put  to  and  answered  hj  ministers,  in  reference  to 
matters  of  public  interest.  By  the  practice  of  both  houses,  mem- 
bers are  allowed  to  put  questions  to  ministers  of  the  crown,  con- 
cerning any  measure  pending  in  parliament,  or  other  public  event : 
and  to  particular  members  who  have  charge  of  a  bill,  or  who  have 
given  notices  of  motion.  Such  questions  should  be  limited,  as  far 
as  possible,  to  matters  immediately  connected  with  the  business  of 
parliament,  and  should  be  put  in  a  manner  which  does  not  involve 
argument  or  inference.  The  answer  should,  in  the  same  manner, 
be  confined  to  the  points  contained  in  the  question,  with  such 
explanations  only,  as  w^ill  render,  the  answer  intelligible.^  This 
topic  will  be  explained  more  at  length  hereafter. 


CHAPTER   FOURTH. 

OF  THE  FORMS   IN   WHICH   THE   POWER    OF  LEGISLATION   IS 
EXERCISED   BY  A  LEGISLATIVE   ASSEMBLY. 

.751.  It  is  only  those  functions  of  the  three  branches  of  parlia- 
ment, which  are  exercised  in  the  way  of  legislation,  —  that  is, 
which  terminate  in  the  form  of  acts  of  parliament  passed  by  the 
concurrent  agreement  of  the  two  houses,  and  assented  to  by  the 
crown,  —  that  there  is  any  present  occasion  to  notice.  The  strictly 
iudicial  functions  of  each  house,  exercised  independently  and 
exclusively  of  the  other,  so  far  as  they  are  branches  of  a  legislative 
body,  have  already  been  treated  of,  under  the  head  of  incidental 
powers.  The  judicial  functions  of  the  house  of  lords,  as  a  court  of 
error  and  appeal,  do  not  fall  within  the  purposes  of  this  work. 
The  proceeding  by  impeachment,  which  belongs  to  the  two 
branches  as  the  sovereign  legislative  power,  though  not  conducted 

1  Pari.  Reg.  (2)  XVIU.  27,  30,  33.  ^  May,  195. 


Chap.  IV.]  forms  of  legislation.  297 

according  to  the  forms  of  legislation,  will  be  treated  of  in  another 
place.  At  present,  then,  the  inquiry  relates  only  to  those  functions 
which  are  strictly  legislative  in  point  of  form. 

752.  In  this  country  a  form  of  legislative  act  is  much  in  use, 
denominated  a  joint  resolution,  or  more  commonly,  perhaps,  a 
resolve ;  which,  in  fact,  is  only  another  name  for  bill  or  act.^  A 
resolve,  though  the  line  which  separates  a  legislative  act  of  the  kind 
from  a  bill  properly  so  called,  cannot  be  accurately  discriminated, 
is  the  form  generally  adopted  in  this  country,  when  administrative, 
local,  or  temporary  laws  are  to  be  passed.  In  what  follows,  in  this 
chapter,  resolves  or  joint  resolutions  as  such  do  not  require  to  be 
separately  noticed. 


Section  I.     Classification  and   Description   of  the   different 

KINDS  OF  Bills. 

753.  There  are  two  modes  of  classifying  acts  of  parliament,  or 
bills,  as  they  are  technically  called,  before  they  have  received  the 
royal  assent ;  the  one  founded  in  the  extent,  the  other  in  the  natiu-e, 
of  their  operation.  According  to  the  first  division,  bills  are  either 
public  or  private ;  according  to  the  second,  they  may  be  termed 
legislative  or  judicial.  Besides  these,  there  are  other  modes,  in 
which  bills  are  designated,  which  are  not  at  present  material  to  be 
explained.  The  first-mentioned  distinctions,  as  they  have  an 
important  bearing  upon  the  forms  of  proceeding,  require  to  be 
briefly  considered. 

754.  A  public  bill  is  one  which  operates  upon  some  subject  or 
measure  of  public  policy  in  which  tho  whole  community  is  inter- 
ested.'-^ A  private  bill  is  one  which  is  for  the  particular  interest  or 
benefit  of  some  person  or  persons,  whether  an  individual  or  a 
number  of  individuals,  a  public  company  or  corporation,  a  parish, 
city,  county,  or  other  locality  having  not  a  legal  but  a  po}mlar 
name  only.'^  In  strictness,  a  private  bill  is  one  which,  as  regards 
the  interest  of  the  parties,  is  exceptional  to  the  general  law,  so  far 
as  the  particular  subject  of  it  is  concerned ;  or  which  makes,  or 
allows  the  parties  to  make,  other  and  different  arrangements,  in 
reference  to  some  particular  matter,  than  would  be  auihorized"  or 
allowed  by  the  general  law.  A  bill,  which  is  purely  leg-iaJative  in 
its  character,  is  one  which  provides  prospectively  for  the  regulation 

1  J.  of  H.   20th  Cong.  1st  Sess.  816;    J.  of         ^  May,  486. 
H.  32d  Cong.  1st  Sess.  679.  8  May,  486. 


298  LEGISLATIVE   ASSEMBLIES.  [PaRT   IV. 

and  conduct  of  some  matter  of  public  or  private  concern,  of  general 
or  local  application.  A  bill  purely  judicial  in  its  character  is  retro- 
spective in  its  operation;  having  for  its  object  the  settling  and 
adjusting  of  some  matter  of  conflicting  right  or  interest  between 
individuals,  or  between  the  public  and  an  individual,  or  the  trying 
of  a  party  for  some  public  offence.^ 

755.  These  different  kinds  of  bills,  though  susceptible  of  being 
accurately  discriminated  one  from  another,  very  seldom  occur  in 
their  pure  and  distinct  character.  A  public  bill  is  very  often  purely 
of  that  character,  or  combined  at  the  same  time  with  the  legisla- 
tive ;  but  one  may  nevertheless  partake  (and  this  occasionally 
happens)  both  of  the  character  of  the  private  and  of  the  judicial. 
A  private  bill  is  seldom  exclusively  so  ;  but  is  almost  always  in 
part  judicial  and  to  a  certain  extent  public,  that  is,  involving 
interests  which  are  of  general  concern.  A  judicial  bill  always 
necessarily  affects  the  interests  of  the  parties  concerned,  and  is  so 
far  private ;  while,  at  the  same  time,  the  interests  of  the  public  are 
concerned,  in  a  greater  or  less  degree,  and,  as  a  precedent  for  the 
future,  it  may  be  considered  as  legislative.  A  legislative  bill,  pro- 
viding a  law  for  the  future,  and  affecting  no  interests  in  being  at 
the  time,  is  not  of  frequent  occurrence.  A  bill  affecting,  or  which 
may  affect,  all  the  citizens  indiscriminately,  is  purely  public ;  if  it 
provides  a  code  of  general  laws,  to  take  effect  at  a  future  time,  and 
contains  a  saving  of  all  existing  rights  or  interests,  it  is  also  purely 
legislative.  A  bill  by  which  a  foreigner  is  naturalized,  —  by  which 
an  individual  is  authorized  to  change  his  name,  —  or  by  which  the 
tenure  of  an  estate  in  which  no  one  is  interested  but  the  proprietor 
is  changed,  —  may  be  regarded  as  a  private  bill,  without  being 
judicial  or  legislative,  and  (the  public  interest  being  so  remote  as 
to  be  practically  nothing)  ^vithout  being  public  in  its  character.  A 
bill,  which  takes  cognizance  of  and  adjusts  a  private  controversy,  is 
judicial  and  private,  but  neither  public  nor  legislative.  A  bill, 
which  convicts  an  individual  of  an  offence  and  inflicts  punishment 
on  him,  is  judicial,  as  it  tries  and  punishes  an  offender, —  private, 
as  it  affects  the  party  concerned,  —  public,  so  far  as  the  offence  is 
of  a  public  character  and  involving  the  interests  of  the  whole  com- 
munity,—  and  legislative,  as  it  establishes  or  may  establish  a  prece- 
dent for  the  future. 

756.  It  may  be  useful  to  indicate  in  what  manner  and  to  what 
extent  the  proceedings  of  a  legislative  body  should   be  affected, 

1  See  Peylm  v.  Smith,  JlcCord's  Reports,  IV.  476;  McCord,  11.  440. 


Chap.  IV.]  forms  of  leqislation.  299 

according  as  a  measure  before  it  is  regarded  as  belonging  to  one 
or  another  of  these  different  classes.  A  purely  legi^^lative  measure, 
affecting  no  present  interests,  and  entirely  prospective  in  its  opera- 
tion, may,  to  a  certain  extent,  be  regarded  as  an  abstract  propo- 
sition, and  be  determined  upon  higher  and  more  general  principles, 
than  a  measure  merely  public,  affecting  the  present  interests  of  the 
whole  community,  which  must  consequently  be  taken  into  consid- 
eration. Before  passing  a  private  bill,  the  consent  of  the  party  or 
parties  is  essential ;  and,  before  proceeding  with  a  judicial  measure, 
the  parties  interested  are  entitled  to  notice  and  a  hearing  if  they 
desire  it.  It  will  be  seen,  that,  according  to  the  course  of  proceed- 
ings in  parliament,  these  principles  are  recognized  and  established, 
so  far  as  they  are  susceptible  of  being  reduced  to  practical  rules. 
In  practice,  as  bills  seldom  or  never  belong  exclusively  to  any  one 
of  the  classes  above-mentioned,  they  take  their  distinctive  appella- 
tions from  the  character  which  predominates ;  the  usual  division 
being  into  public,  private,  and  judicial ;  the  rules  and  course  of  pro 
ceeding  applicable  to  which  wiU  now  be  briefly  stated. 


1.   Public  Bills. 

151.  In  passing  bills  of  this  description,  parliament  acts  strictly 
(though  not  always  exclusively)  in  its  legislative  capacity.  As  the 
sovereign  legislative  power,  it  originates  all  those  measures,  which, 
in  its  judgment,  appear  to  be  demanded  by  or  conducive  to  the 
public  good ;  it  undertakes  and  conducts  all  such  inquiries  as  may 
be  necessary  to  obtain  for  it  the  information  which  it  needs ;  and  it 
enacts  laws,  with  reference  to  such  measures,  and  upon  such  infor- 
mation, according  to  its  own  \^dsdom  and  judgment.  The  forms, 
in  which  its  deliberations  are  conducted,  are  established  principally 
and  primarily  for  its  own  convenience ;  its  proceedings  are  inde- 
pendent for  the  most  part,  of  individual  parties ;  persons  interested, 
or  deeming  themselves  so,  may  indeed  bring  their  wishes  and 
opinions  to  the  knowledge  of  parliament  by  means  of  petitions, 
and,  in  peculiar  cases,  may  be  heard  ;  but  individual  parties  do  not 
ordinarily  participate  in  the  conducting  of  the  business,  nor  are 
they,  as  parties,  supposed  to  have,  or  entitled  to  have,  any  imme- 
diate influence  upon  the  judgment  of  parliament.^ 

1  May,  487,  488 


300  LEGISLATIVE    ASSEIMBLIES.  [PaRT  IV 


2.   Private  Bills. 

758.  It  being  rarely  the  case,  as  already  remarked,  that  a  private 
bill  is  not  also  at  the  same  time  to  some  extent  judicial,  —  inasmuch 
as  that  which  is  for  the  particular  benefit  of  some  persons  may  be 
injurious  to  others,  —  it  is  almost  always  necessary  in  proceeding 
upon  private  biUs,  to  discriminate  between  the  conflicting  interests 
of  different  parties.  In  passing  private  bills,  therefore,  the  proceed- 
ings of  parliament,  though  legislative  in  point  of  form,  partake 
also  of  a  judicial  character.  The  persons,  whose  private  interests 
are  to  be  promoted,  appear  as  suitors ;  while  those  who  apprehend 
injury  are  admitted  as  adverse  parties  in  the  suit.  All  the  formali- 
ties of  a  court  of  justice  are  maintained ;  various  conditions  are 
required  to  be  observed  and  their  observance  to  be  strictly  proved ; 
if  the  parties  do  not  sustain  the  biH  in  its  progress,  by  following 
every  regulation  and  form  prescribed,  it  is  not  forwarded  or  suffered 
to  proceed,  by  the  house  in  which  it  is  pending;  if  the  parties 
abandon  it,  and  no  other  parties  undertake  its  support,  the  bill  is 
lost,  however  sensible  the  house  may  be  of  its  value.  The  analogy, 
which  all  these  circumstances  bear  to  the  proceedings  of  a  court  of 
justice,  is  further  supported  by  the  payment  of  fees,  which  is 
required  of  every  party  promoting  or  opposing  a  private  bill,  or 
desiring  or  opposing  any  particular  provision,  and  also  by  the 
employment  of  parliamentary  agents,  by  whom  every  private  bill  is 
solicited.  Courts  of  equity,  also,  look  upon  the  soHcitation  of  a 
bill  in  parliament  in  the  light  of  an  ordinary  suit,  and  will  in  a 
proper  case  restrain  the  promoters  by  injunction  from  proceeding 
with,  or  petitioners  against  from  opposing.  This  union  of  the 
judicial  and  legislative  functions  is  not  confined  to  the  forms  of 
procedure,  but  is  an  important  principle  in  the  inquiries  and 
decision  of  parliament  upon  the  merits  of  private  bills.  As  a  court, 
it  inquires  and  adjudicates  upon  the  interests  of  private  parties ;  as 
a  legislature,  it  is  watchful  over  the  interests  of  the  public.  The 
promoters  of  a  bill  may  prove,  beyond  a  doubt,  that  their  own 
interest  will  be  advanced  by  its  success,  and  no  one  may  complain 
of  injury,  or  urge  any  specific  objection ;  yet,  if  parliament  appre- 
hends that  it  will  be  hurtful  to  the  community,  it  is  rejected  as  if  it 
were  a  public  measure,  or  quahfied  by  restrictive  enactments,  not 
solicited  by  the  parties.^  The  same  principles  prevail,  to  a  greater 
or  less  extent,  in  the  practice  of  our  legislative  assemblies. 

1  May,  488,  489. 


CUAP.  IV.]  FORMS    OF   LEGISLATION.  301 


3.  Judicial  Bills. 

759.  The  terms  public  and  private  are  in  common  use,  in  parlia- 
mentary proceedings,  to  denote  the  two  kinds  of  biUs  above  men- 
tioned. The  term  judicial  has  been  adopted  to  designate  a  class  of 
bills  equally  distinct  and  specific  in  its  character ;  embracing  in  a 
civil  sense,  among  others  already  alluded  to,  aU  bills  founded  on  a 
claim  of  right  against  the  government,  as  for  a  debt,  and  in  a  crimi- 
nal sense,  bills  of  attainder,  of  pains  and  penalties,  and  disqualify- 
ing and  disabling  biUs.  The  great  principle,  to  be  observed  in  pro- 
ceeding upon  this  description  of  bills,  both  civil  and  criminal,  is,  that 
the  parties  interested  are  to  have  an  opportunity  to  be  heard,  if  they 
desire  it,  in  as  full  and  ample  a  manner  as  if  their  cause  was  on 
trial  in  a  court  of  justice. 

760.  The  power  of  parliament,  to  punish  offenders  by  statute, 
belongs  to  the  highest  attributes  of  sovereignty.  In  passing  bills 
for  this  purpose,  the  proceedings  are  the  same  as  in  regard  to  other 
bills ;  they  may  be  introduced  into  either  house  ;  they  pass  through 
the  same  stages ;  and,  when  agreed  to  by  both  houses  they  receive 
the  royal  assent  in  the  usual  form.  The  two  houses  are  thus  judges 
of  equal  jurisdiction  and  responsibility  ;  and  a  conviction  and  con- 
sequent punishment  can  only  take  place  by  the  concurrent  act  of 
the  three  branches  of  parliament.  In  these  proceedings  the  prose- 
cution is  conducted,  on  the  part  of  the  government,  by  counsel  and 
witnesses,  and  the  parties  against  whom  they  are  directed  are  ad- 
mitted to  defend  themselves  by  counsel  and  witnesses;  that  is,  a 
solemn  trial  takes  place,  or  may  take  place,  in  each  house.  In  both 
houses,  the  members  decide  as  well  upon  the  law  as  the  fact ;  but 
in  the  house  of  lords,  the  judges  are  in  attendance  to  give  their 
opinion  and  advice  as  to  matters  of  law.  In  modern  times,  trials 
of  this  description  have  been  conducted  in  a  manner  analogous  to 
the  proceedings  in  a  court  of  justice;  the  ordinary  rules  of  evidence 
observed  in  courts  of  justice  have  been  strictly  adhered  to ;  and  the 
utmost  solicitude  has  been  manifested,  that  the  parties  implicated 
should  be  fully  heard  and  fairly  tried.^  In  evil  times,  this  power 
has  been  perverted  and  abused ;  and,  at  all  times,  it  cannot  but  be 
regarded  with  great  jealousy.^     The  American  constitutions,  gener- 


*  The  most  remarkable  instance    of  this      Queen's  Case,  Broderip  &  Bingham's  Reports 
mode  of  proceeding,  in  modem  times,  is  The  '  U.  287. 

2  May,  484,  486. 

26 


302  LEGISLATIVE    ASSEMBLIES.  [PaRT    IV. 

ally,  contain  express  prohibitions,  restraining  the  legislature  from 
the  exercise  of  this  power. 


Section  II.  Of  certain  Classes  of  Laws  which  are  withheld 
FROM  THE  Legislative  Authority,  or  regulated,  by  Constitu- 
tional Provisions. 

761.  In  the  constitutions  of  the  United  States  and  of  the  several 
States,  there  are  various  provisions,  by  which  legislative  bodies  are 
prohibited  from  passing  laws,  with  reference  to  particular  topics ; 
and  besides  these  they  also  contain  prohibitions  with  reference  to 
certain  classes  of  laws,  which  it  is  proposed  to  notice. 

762.  In  the  constitution  of  the  United  States,  there  are  two  pro- 
visions of  this  description,  first,  a  provision,  prohibiting  congress 
from  passing  bills  of  attainder,  and  ex  post  facto  laws ;  and  secondly, 
a  provision,  prohibiting  the  several  States  from  passing  bills  of 
attainder,  ex  post  facto  laws,  and  laws  impairing  the  obligation  of 
contracts. 

763.  The  constitutions  of  the  several  States  contain  similar  pro- 
hibitions, which  may  all  be  arranged  in  the  following  classes,  namely, 
1.  Bills  of  attainder,  of  pains  and  penalties,  and  declaring  guilty  of 
treason  or  felony ;  2.  Ex  post  facto  laws ;  3.  Laws  impairing  the 
obligation  of  contracts ;  and,  4.    Retrospective  laws. 

764.  I.  Bills  of  attainder.  Some  of  the  constitutions  prohibit 
the  passing  of  bills  of  attainder  generally.  In  England,  when  sen- 
tence of  death  is  passed  upon  a  person  who  is  convicted  of  an 
offence,  he  is  said  to  be  attainted,  that  is,  stained  and  rendered  in- 
famous. Bills  of  attainder  are  therefore  such  as  convict  the  party, 
against  whom  they  are  directed,  and  at  the  same  time,  sentence 
him  to  the  punishment  of  death  therefor,  and,  which  are  followed 
by  a  loss  of  the  power  of  transmitting  real  estate  to  his  heirs,  and 
a  forfeiture  of  both  real  and  personal  estate.  This  is  supposed  to 
be  the  strict  sense  of  the  terms,  bill  of  attainder. 

765.  In  some  of  the  constitutions,  the  prohibition  is,  that  no  per- 
son shall  be  attainted  of  treason  or  felony  by  the  legislature.  This 
seems  to  confine  the  prohibition,  in  terms,  to  cases  of  the  description 
of  treason  or  felony,  according  to  the  existing  laws,  and  to  leave  the 
legislative  bodies  at  liberty,  unless  restrained  by  some  other  provis- 
ion, to  pass  bills  of  attainder  with  reference  to  other  offences. 

766.  In  other  States,  the  provision  is  that  no  person  shall  be 
declared,  by  the  legislature,  guilty  of  treason  or  felony.      The  pur- 


Chap.  IV.]  forms  of  legislation.  303 

pose  of  this  provision  was  doubtless  the  same  with  the  last  men- 
tioned ;  but  a  different  construction  is  possible ;  inasmuch,  as  it 
might  be  said,  that  attainting  implied  the  punishment  of  death, 
and  that  declaring  a  party  guilty  of  treason  or  felony  did  not ;  and 
thus  this  provision  might  receive  a  broader  meaning  than  the 
former. 

767.  Bills  of  pains  and  penalties  are  such  as  declare  a  person 
guilty  of  some  offence,  not  punishable  with  death,  and  prescribe  the 
punishment  to  be  inflicted  therefor.  Laws  of  this  description  do 
not  appear  to  be  within  the  prohibition  as  to  bUls  of  attainder,  and 
unless  restrained  by  some  other  prohibition  a  legislative  body  might 
enact  such. 

768.  Various  other  constitutional  provisions  exist,  which  might 
restrain  the  power  of  the  legislature  to  pass  bills  of  this  description, 
such  as  the  separation  of  the  judicial,  legislative,  and  executive 
functions ;  and  perhaps  they  would  be  held  so  utterly  at  variance 
with  the  spirit  of  our  government  and  institutions  as  not  to  be  con- 
sidered within  the  ordinary  powers  of  a  legislative  body.  At  all 
events,  the  occasions  must  be  extremely  rare,  on  which  there  is 
likely  to  be  any  call  for  legislation  of  this  sort. 

769.  II.  Ex  post  facto  laws.  These  terms  are  sometimes  used 
to  denote  retrospective  laws,  but,  in  strictness,  they  embrace  only 
such  as  inflict  punishment  for  acts,  which,  at  the  time  they  were 
done,  were  not  legally  punishable.  The  constitution  of  Massachu- 
setts does  not  use  the  term  ex  post  facto,  but  language  descriptive 
of  such  laws,  namely :  "  Laws  made  to  punish  for  actions  done 
before  the  existence  of  such  laws,  and  which  have  not  been  declared 
criminal  by  previous  laws."  In  Maryland,  North  Carohna,  and 
Tennessee,  the  constitutions  first  describe  ex  post  facto  laws,  in  the 
sense  above  explained,  and  then  prohibit  them  in  express  terms. 

770.  III.  Laws  impairing  the  obligation  of  contracts.  This 
branch  of  legislation  opens  too  wide  a  subject  altogether  to  be  taken 
up  in  connection  with  parliamentary  law. 

771.  IV.  Retrospective  laws.  Several  of  the  State  constitutions 
prohibit  the  passing  of  laws  of  this  description  in  general  terms. 
In  New  Hampshire,  the  provision  is,  that  "  because  retrospective 
laws  are  highly  injurious,  oppressive,  and  unjust,  no  such  laws 
should  be  made,  either  for  the  decision  of  civil  causes,  or  the  pun- 
ishment of  offences."  It  is  not  supposed  that  this  adde  any  thing  to 
the  force  of  the  general  expression.  The  term  retrospective  applies 
as  well  to  civil  as  to  criminal  proceedings,  and  therefore  embraces 
ex  post  facto  laws.     Retrospective  laws   have   been   reprobated  as 


304  LEGISLATIVE    ASSEMBLIES.  [PaRT   IV. 

unjust,  but,  unless  expressly  forbidden  by  some  constitutional  pro- 
vision, they  appear  to  be  in  the  power  of  a  legislative  body  to 
pass. 

772.  Besides  these  and  other  constitutional  provisions,  which 
withdraw  certain  subjects  altogether  from  ordinary  legislative 
action,  there  are  also  others,  which  relate  to  the  form  or  course  of 
proceeding  on  particular  classes  of  bills.  In  the  former  case,  the 
court,  which  decides  upon  the  constitutionality  of  every  act,  judges 
of  it  by  what  appears  upon  its  face.  In  the  latter,  the  court  must 
first  decide  whether  the  act  in  question  belongs  to  a  particular 
class ;  and,  secondly,  whether  the  requisite  forms  have  been  pur- 
sued. This  subject  will  be  further  considered  in  connection  with 
the  forms  of  proceeding  in  the  passing  of  bills. 


CHAPTER    FIFTH. 

OF  THE  RULES  OR  LAWS  BY  WHICH  THE  PROCEEDINGS  OF  A  LEGIS- 
LATIVE ASSEMBLY  ARE  REGULATED. 


Section  I.    General  View  of  the  Forms  and   Rules  of  Pro- 
ceeding. 

773.  The,  business  of  every  court  or  tribunal,  which  is  of  a  per- 
manent character,  and  whose  functions  are  set  in  motion  upon 
applications  made  to  it  from  without,  is  regulated  by  settled  forms 
and  methods,  which  constitute  what  is  called  the  style  or  practice 
of  the  particular  court.  Rules  of  this  description,  which  prescribe 
the  terms,  conditions,  and  modes  of  proceeding,  between  the  tribu- 
nal and  those  who  resort  to  it  for  the  exercise  of  its  functions, 
make  a  part  of  the  law  of  the  land,  and  are  binding  upon  the  tribu- 
nal itself  until  abrogated  or  modified. 

774.  But  besides  the  external  business  of  the  court,  there  are 
also  deliberations,  consultations,  and  debates,  among  its  members, 
(where  it  is  composed  of  more  than  a  single  individual,)  in  forming 
the  judgments  which  it  promulgates ;  and  these  proceedings,  even 
when  of  the  simplest  character,  require  nevertheless  to  be  con- 
ducted in  a  greater  or  less  degree  according  to  settled  methods  and 


Chap.  V.]  rules  of  proceeding.  305 

forms.  The  rules,  by  which  these  internal  proceedings  are  regu- 
lated, are  of  a  different  nature  from  the  former ;  they  do  not,  stTictly 
speaking,  form  a  part  of  the  practice  of  the  court ;  Ihcy  are  the  law 
of  the  members  of  which  it  consists;  and  they  may  not  only  be 
abrogated  or  repealed,  but  dispensed  with  or  disregarded,  at  its 
pleasure.  In  all  courts,  tril)unals,  councils,  and  official  boards  of 
every  description  consisting  of  several  members,  bolh  these  systems 
are  in  use;  the  one  or  the  other  predominating,  according  to  the 
nature  of  the  functions  exercised  by  each  particular  body.  In 
iudicial  courts  the  rules  of  proceedings  relate  more  to  the  external, 
in  legislative  bodies  more  to  the  internal,  course  of  business.  The 
laws,  by  which  the  proceedings  of  legislative  assemblies  are  regu- 
lated, and  which  are  now  to  be  considered,  belong  to  both  classes, 
but  chiefly  to  the  latter. 

775.  If  a  deliberative  body  is  composed  of  but  few  members,  it 
will  have  little  occasion  for  rules  to  govern  its  internal  proceedings, 
whatever  may  be  the  nature  or  extent  of  its  powers ;  if  its  powen. 
are  limited,  and  in  proportion  as  they  are  limited,  it  will  have  as 
little  occasion  for  rules  of  proceeding,  however  great  its  numbers 
may  be ;  if  its  numbers  are  considerable,  and  its  powers  extensive, 
settled  rules  and  methods  of  proceeding  are  indispensable  to  a 
proper  discharge  of  its  functions.  A  committee  of  three  or  five 
members  is  an  example  of  the  first  kind  of  deliberative  body ;  a 
grand-jury,  though  not  a  numerous  body,  furnishes  a  good  example 
of  the  second ;  the  two  houses  of  the  British  parliament,  and  the 
legislative  assemblies  of  the  United  States,  belong  to  the  third. 

776.  It  is  highly  important  to  the  preservation  of  order,  decency, 
and  regularity,  in  a  numerous  assembly,  and  not  less  essential  to 
its  power  of  harmonious  and  efficient  action,  that  its  proceedings 
should  be  regulated  by  established  forms  and  methods ;  and,  with  a 
view  to  these  purposes,  it  is  more  material,  perhaps,  that  there 
should  be  rules  established,  than  that  they  should  be  founded  upon 
the  firmest  basis  of  reason  and  argument  ;i  the  great  object  being 
to  effect  a  uniformity  of  proceeding  in  the  business  of  the  assembly, 
securing  it  at  once  against  the  caprice  of  the  presiding  officer,  and 
the  captious  disputes  of  members.  It  is  to  the  observance  of  regu- 
larity and  order  among  the  members,  that  the  minority  look  for  pro- 
tection against  the  power  of  the  majority  ;-  and  in  the  adherence  to 
established  forms,  betu'-een  the  different  branches,  that  each  finds 
its  security  against  the  encroachments  of  the  others.^ 

i  HatseU,  II.  207,  208.  »  Pari.  Res-  XL VI.  28.  HatseU,  III.  25.  not* 

26*  # 


306  LEGISLATIVE   ASSEMBLIES.  [PaRT  IV. 


Section  II.     Sources  of  Parliamentary  Rules. 

777.  The  forms  and  methods  of  proceeding  in  the  British  par- 
liament,—  especially  those  which  prevail  in  the  house  of  commons, 
which  has  served  as  a  model  for  most  of  the  legislative  assembhes 
of  the  present  day,  —  are  the  fruit  of  more  than  two  centuries  of  the 
wisdom  and  experience  of  that  celebrated  body.  They  are  founded 
partly  in  usages  which  are  nowhere  recorded  in  express  terms  on 
the  journals,  but  are  constantly  recognized  and  practised  upon,  as, 
for  example,  the  rule  that  a  bill,  before  passing,  is  to  be  read  three 
times  on  three  several  days ;  partly  in  resolutions  and  precedents 
of  proceedings  which  are  considered  as  declaratory  of  the  law  and 
usage  of  parliament ;  partly  in  orders  made  from  time  to  time  for 
the  purpose  of  regulating  the  proceedings ;  and  partly  in  statutes 
or  acts  of  parliament. 

I.    Usages. 

778.  The  usages  of  parliament,  by  which  is  here  intended  the 
constant  and  usual  method  of  proceeding,  when  not  declared  in 
any  more  direct  or  specific  manner,  are  to  be  collected  from  the 
entries  in  the  journals  ;  from  the  history  of  parliamentary  proceed- 
ings ;  from  the  treatises  on  parliamentary  practice  that  have  been 
pubKshed  from  time  to  time ;  and  from  the  observations  of  experi- 
enced members,  and  the  remarks  of  the  speakers  in  the  house  of 
commons,  with  relation  to  the  forms  and  methods  of  proceedings, 
as  contained  in  the  published  debates.  There  are  doubtless  many 
points,  especially  of  modern  practice,  which  can  only  be  known  by 
personal  experience  or  observation.  This  is  no  inconsiderable 
source  of  parliamentary  law  in  this  country. 


II.    Pvesolutions. 

11^.  Resolutions  or  declarations,  entered  in  the  journal,  expres- 
sive of  the  opinion  of  the  house  relative  to  its  rules  or  usages, 
constitute  another  source  of  parhamentary  practice,  of  equal  if  not 
superior  authority  with  that  aheady  mentioned.  An  example  of 
this  kind  occurs  in  an  entiy  in  the  journals  of  the  commons,  under 
date  of  January  5,  1640,  which  is  the  only  written  evidence  of  the 
number  of  members  necessary  to  form  a  quorum  of  that  house, 


Chap.  V.]  rules  of  proceeding.  307 

namely :  —  "It  was  declared  as  a  constant  rule,  that  IVIr.  Speaker  is 
not  to  go  to  his  chair,  till  there  be  at  least  forty  in  the  house."  ^ 
Entries  of  a  similar  character  are  not  unfrequent  in  the  earlier 
journals.  Sometimes  a  declaration  of  the  rule  takes  place  with 
reference  to  a  question  then  pending,  and  for  the  purpose  of  decid- 
ing it;  as,  for  example,  where  a  petition  was  presented  and  read 
and  the  petitioners,  on  being  called  in,  made  a  statement  relative 
to  the  manner  in  which  the  petition  was  signed,  on  which  a  del^ate 
arose  "  touching  the  manner  how  petitions  ought  to  be  signed," 
the  house  resolved,  "  that  the  petitions  presented  to  the  house  ought 
to  be  signed  by  the  petitioners,  with  their  own  hands,  by  then:  names 
or  marks."  ^ 

III.   Precedents. 

780.  Precedents,  though  coming  under  the  general  head  of  usage, 
in  its  broadest  signification,  are  nevertheless  distinguishable  from 
the  sort  of  usages  above  spoken  of;  the  former  being  only  the  occa- 
sional proceedings,  the  latter  the  constant  and  daily  practice  of 
parliame.nt.  Precedents,  in  parliamentary  proceedings,  have  been 
established  in  substantially  the  same  manner,  and  are  regarded 
with  equal  respect,  as  those  which  have  been  established  by  the 
practice  of  the  judicial  com*ts.  When  any  new  case  occm-s,  for 
which  the  anterior  practice  of  parliament  furnishes  no  rule  of  pro- 
ceeding, the  usual  course  is  to  settle  it  upon  a  careful  consideration 
of  analogous  cases,  if  any  have  occurred,  and  it  then  becomes  a 
precedent  for  future  proceedings.  If  the  circumstances  of  the  case 
are  so  peculiar  that  a  proceeding  ought  not  to  be  regarded  as  a 
precedent ;  or,  if,  for  any  other  cause,  the  house  is  unwilling  that  it 
should  be  so  regarded,  the  usage  is  to  make  an  entry  on  the  jour- 
nal, that  what  has  thus  been  done  is  not  to  be  drawn  into  precedent. 
The  journals  contain  many  entries  of  tliis  sort. 

781.  It  is  the  constant  practice,  also,  on  the  occurrence  of  a  new 
point  of  parliamentary  practice,  for  the  house  to  suspend  its  pro- 
ceeding upon  the  matter  out  of  which  it  arises,  and,  m  the  mean 
time,  to  appoint  a  committee  to  search  the  journals  for  precedents 
of  "  \\\\\xi  hath  been  done  in  hke  cases,"  and,  upon  their  report,  to 
settle  the  point,  either  by  a  distinct  resolution  declaratory  of  the 
law  and  usage  of  parliament,  or  by  the  form  of  its  proceeding  upon 
the  matter  in  question.  If  the  report  of  the  committee  is,  that  it 
finds  no  precedents,  the  question  must  be  settled,  as  akeady  sug- 

»  Coram  Jour.  II.  63.  *  Comm.  Jour.  X.  285 


308  legislati^t;  assemblies.  [Part  IV. 

gested ;  if  it  reports  a  series  of  precedents  on  both  sides,  it  is  for 
the  house  to  decide  which  is  the  most  worthy  of  its  deliberate 
sanction ;  if  the  precedents  are  found  to  be  uniform,  this,  of  course, 
settles  the  question. 

782.  Another  and  a  frequent  course,  when  a  question  of  practice 
arises,  is,  to  move  for  the  reading  of  proceedings  from  the  journals, 
in  analogous  cases,  and  thereupon  to  come  to  a  decision,  without  the 
delay  of  a  committee  to  search  for  precedents.  The  advantage  of 
the  latter  mode  is,  that  it  enables  the  house  to  see  the  precedents 
on  both  sides,  if  the  practice  has  not  been  uniform ;  whereas  the 
former  only  presents  those  cases,  which  can  be  brought  to  mind  at 
the  moment,  or  which  may  have  been  carefully  selected  for  the  par- 
ticular purpose.^ 

783.  The  value  of  precedents  must  depend,  of  course,  partly 
upon  the  character  of  the  proceedings  to  which  they  belong ;  partly 
upon  that  of  the  assembly  by  which  they  are  established;  and 
partly  upon  that  of  the  times  in  which  they  occur.  Some  parha- 
ments  have  been  more  observant  than  others  of  what  belongs  to 
regularity  of  proceeding ;  some  have  carried  their  privileges  to  a 
much  greater  extent  than  would  now  be  considered  waiTantable  ; 
some  have  been  occupied  rather  with  adirdnistrative  than  with 
legislative  functions.  ]VIr.  Hatsell  rejects  as  precedents  all  the  pro- 
ceedings in  both  houses,  from  the  4th  of  January,  1641,  (when  the 
king,  Charles  I.,  went  in  person  to  the  house  of  commons,  for  the 
purpose  of  arresting  certain  members,)  to  the  restoration,  on  the 
ground  that,^  "  however  necessary  to  protect  the  State  from  the 
return  of  arbitrary  power,  and  however  excusable  from  the  very 
particular  circumstances  of  the  times,  or  justified  by  the  confusion 
into  which  the  government  was  thrown  by  the  conduct  of  the  king, 
they  cannot  be  considered  as  precedents  to  be  followed  in  times  of 
peace  and  quietness."  The  value  ascribed  to  precedents,-  in  the 
parliamentary  law  of  England,  is  not  less  in  this  country ;  but 
their  existence  does  not  appear  to  be  ascertained  in  the  same  formal 
and  solemn  manner.^ 

IV.    Orders. 

784.  Orders,  which  constitute  a  fourth  source  of  the  law  and 
practice  of  parliament,  are  the  rules  and  regulations,  or,  in  other 

1  Hansard  (3i,  XLV.  505,  506.  Cong.  2d  Sess.  1777;  Reg.  of  Deb.  VL  Part  L 

2  Hatsell,  I.  223.  2;    Cong.   Globe,  XI.   133,   140,   238;    Same, 
«  See  J.  of  S  .  HI.  332;    Ann.  of  Cong.  4th      XV.  529. 


CUAP.    v.]  RULES   OF   PROCEEDING.  309 

words,  the  by-laws,  which  have  been  expressly  agreed  upon  by 
either  house,  for  the  government  of  its  own  proceedings.  Orders 
of  this  description,  which  are  analogous  to  general  laws,  must  not 
be  confounded  with  those  orders  which  are  constantly  made  with 
reference  to  matters  pending  in  either  house,  and  by  means  of 
which  the  business  of  the  house  is  carried  on.  The  orders  now 
under  consideration  may  be  divided  into  three  kinds :  1.  Standing 
orders ;  2.  Sessional  orders ;  3.  Occasional  orders,  or  those  which 
are  undetermined  in  regard  to  their  duration. 

1.  Standing  Orders. 

785.  The  orders  of  both  houses,  which  are  known  by  the  name 
of  standing  orders,  are  those  which  they  have  from  time  to  time 
agreed  to,  for  the  government  and  regulation  of  their  proceedings, 
and  which  they  have  declared  to  be  standing  orders.  Orders  of  this 
description  do  not  expire  with  the  session  or  parliament,  in  which 
they  are  made ;  but  endure  from  one  parliament  to  another,  and 
are  of  equal  force  in  every  succeeding  parliament,  until  vacated, 
rescinded,  or  abrogated,  by  the  house  in  which  they  are  established.^ 
A  standing  order  is  sometimes  made  at  once,  but,  not  unfrequently, 
an  occasional  order  or  resolution  of  a  previous  session  or  parliament 
is  revived  and  declared  to  be  a  standing  order.     Thus  a  resolution 

.  of  the  house  of  commons  of  December  11,  1706,-  "that  this  house 
will  receive  no  petition  for  any  sum  of  money  relating  to  public  ser- 
vice, but  what  is  recommended  from  the  crown,"  was  revived  June 
11,  1713,  and  declared  to  be  a  standing  order,  and  has  ever  since 
been  observed  as  such.^  The  system  of  standing  orders,  which 
plays  so  important  a  part  in  the  proceedings  of  the  English  parlia- 
ment, has  no  existence  in  the  legislative  assemblies  of  this  country. 
The  nearest  approach  to  it  is  found  in  the  rules  and  orders  of  the 
senate  of  the  United  States,  and  other  similarly  constituted  bodies. 
That  branch  being  a  permanent  body,  containing  always  more  than 
a  quorum  of  its  members,  and  being  duly  organized,  its  rules  and 
orders  are  not  renewed  from  one  congress  to  another. 

2.  Sessional  Orders. 

786.  It  has  been  the  practice  of  the  two  houses,  for  a  long  period, 
at  the  commencement  of  each  session,  to  agree  to  certain  orders 

1  A  stnndinfr  order  cannot  be  dispensed  with         -  Comin.  Jour.  XV.  211. 
by  one  house  lor  a  succeeding  house.     Hans.         *  Conim.  Jour.  XVII.  417 
3)  LV.  14. 


o 


10  LEGISLATIVE  ASSEMBLIES.  [PaET   IV 


and  resolutions,  w^hich  are  regularly  renewed  in  every  succeeding 
session,  and  which  are  consequently  intended  to  endure  only  during 
the  session  in  which  they  are  made.  These  orders  are  known  by 
the  name  of  sessional  orders.  They  relate  in  part  to  what  may  be 
called  the  police  of  the  house ;  and  are  in  part  merely  subsidiary  to 
the  known  law  and  usage  of  parliament.  The  sessional  orders  of 
the  house  of  commons,  which  are  usually  made  at  the  present  time 
relate  to  the  appointment  of  the  committee  of  privileges  ;  the  pun- 
ishment of  false  evidence  and  tampering  with  witnesses ;  the  time 
within  wliich  election  proceedings  are  to  be  commenced ;  the  taking 
of  strangers  into  custody ;  the  keeping  of  the  passages  to  ihe  house 
clear  of  obstruction ;  the-  receiving  and  distributing  of  letters  ad- 
dressed to  members,  etc.  These  are  the  only  permanent  orders, 
which  have  any  existence  in  this  country ;  and  all  orders  are  merely 
sessional,  that  is,  they  last  during  the  session  in  which  they  are 
made,  unless  otherwise  expressed  to  be  made  for  a  longer  or  shorter 
time.  It  is  supposed  to  be  competent  for  a  legislative  assembly  to 
bind  itself,  if  it  thinks  fit,  for  a  succeeding  session. 

3.    Occasional  Orders. 

787.  Orders  of  this  kind  do  not  differ  from  standing  orders,  in 
any  other  respect,  than  that  they  are  binding  only  during  the  session 
at  which  they  are  made.  If  declaratory  of  a  general  law  or  usage 
of  parliament,  they  are  observed  as  such,  after  the  expiration  of  the 
session.  If  introductory  of  a  new  usage,  which  is  found  beneficial, 
they  may  be  declared  to  be  standing  orders,  or  may  take  the  form 
of  sessional  orders.  The  order  of  the  commons  first  adopted  in 
1833,  for  the  holding  of  morning  sittings,  for  private  business  and 
petitions,  was  an  occasional  order,  which  was  renewed  only  in  the 
next  session,  after  which  the  morning  sittings  were  discontinued. 

V.    Statutes. 

788.  Although  it  is  not  in  the  power  of  one  legislature  to  make 
laws  which  a  succeeding  legislature  shall  be  bound  not  to  repeal ; 
yet  it  is  nevertheless  competent  to  any  legislature  if  not  otherwise 
restrained,  to  regulate  by  statute  the  future  proceedings  of  the 
separate  branches.  The  principal  regulations,  in  the  house  of  com- 
mons, which  are  derived  from  this  source,  are  those  which  relate  to 
the  trial  of  controverted  elections. 

789.  To  the  same  head  of  statutory  regulations  belong  those  pro- 


Chap.  V.]  rules  of  proceeding.  311 

visions  relating  to  legislative  proceedings,  which  are  sometimes 
inserted  in  the  constitution  ;  as,  for  example,  that  every  bill  ;^hall  be 
read  three  several  times ;  that  certain  bills  shall  not  pass  but  by  a 
certain  specific  majority;  that  money  bills,  or  bills  for  raising  a 
revenue,  shall  originate  in  the  most  popular  branch. 

790.  The  foregoing  are  the  several  sources  of  the  law  and  prac- 
tice of  parliament,  by  which  the  proceedings  of  its  several  branches 
are  regulated.  They  are  of  different  degrees  of  authority.  A  stat- 
ute regulation  supersedes,  and  cannot  be  abrogated  by,  any  order 
of  the  house  to  which  it  applies.  An  express  order  of  the  house, 
whether  standing  or  occasional,  supersedes  every  mere  usage  or 
precedent.  In  the  absence  of  any  express  order  "  what  can  or  ought 
to  be  done  by  either  house  of  parliament,  is  best  known  by  the 
custom  and  proceedings  of  parliament  in  former  times."  ^ 


Section  III.     Or  the  Rules  by  which  Legislative  Assemblies 
IN  THIS  Country  are  governed. 

791.  The  sources  of  parliamentary  rules,  which  have  been  above 
described,  are  the  sources  of  the  parliamentary  law  of  this  country, 
as  weU  as  that  of  the  British  parliament,  through  which  they  are 
derived,  but,  in  different  degrees,  perhaps,  to  our  legislative  assem- 
blies. The  ways  and  methods  of  parliament,  so  far  as  they  are 
applicable,  have  been  adopted  in  this  countiy ;  and  to  these  have 
been  added  .such  parliamentary  usages  of  our  own,  as  have  been 
adapted  to  the  wants  of  legislative  assemblies  in  this  country.  The 
latter  are  sti'ictly  analogous  to  and  merely  extend  the  former. 
These  usages  lie  at  the  foundation  of  many  of  the  written  rules 
by  which  our  legislative  assemblies  are  governed,  and  which  are 
the  principal  source  and  depositary  of  parliamentary  law  in  this 
country. 

792.  In  the  American  constitutions  it  is  provided,  generally,  that 
each  house  shall  have  the  right  to  determine  the  rules  of  its  o^^^l 
proceedings.  No  legislative  assembly,  therefore,  can  make  any 
rules,  which  shall  be  binding  upon  its  successors,  even  until  abro- 
gated or  rescinded  by  them.  Hence  the(system  of  standing  orders 
is  not  in  use  in  our  legislative  bodies  I  ^ut  it  is  the  invariable  prac- 
tice, for  each  of  them,  soon  after  its  first  meeting  and  organization, 
to  frame  and  adopt  a  code  of  \\Titten  rules  for  the  government  and 
regulation  of  its  own  proceedings.^  The  rules  of  the  different  assem- 

1  Hatsell.  IV.  491.  note. 


312  LEGISLATIVE   ASSEMBLIES.  [PaRT   IV. 

blies,  throughout  the  Union,  which  differ  greatly  both  in  numbers 
and  in  quantity  of  business,  are,  of  course,  very  different ;  but  each 
is  adapted  to  the  peculiar  wants  and  condition  of  the  assembly  by 
which  it  is  formed  ;  and  all  are  founded  in  and  recognize  the  usages 
and  methods  of  parliament.  The  code  of  rules,  which  each  house 
thus  adopts  for  itself,  commonly  undergoes  amendments  and  re- 
ceives accessions,  during  the  session ;  and  being  adopted  by  each 
successive  house,  the  system  of  rules  in  force  in  each  has  attained 
and  preserved  an  uniform  and  consistent  character,  and,  in  process 
of  time,  has  grown  to  considerable  size.  But  though  each  house 
may  and  does  determine  its  rules  of  procedure,  it  does  not  follow, 
from  this  piinciple,  that,  until  it  adopts  rules,  a  legislative  assembly 
is  entirely  destitute  of  rules  for  the  government  of  its  proceedings. 
It  is,  m  the  mean  time,  governed  by  what  may  be  called  the  com- 
mon parliamentary  law,  that  is,  so  much  of  the  usages  and  methods 
of  parliament,  as  are  of  general  application,  modified  by  usage  and 
practice  in  this  country. 

793.  The  result  of  the  foregoing  considerations  is,  that,  after  a 
legislative  assembly  meets,  and  until  it  adopts  rules  and  orders,  it 
is  governed  and  its  proceedings  regulated  by  the  common  parlia- 
mentary law ;  ^  and  that  when  it  has  adopted  rules  and  orders  of 
its  own,  it  is  governed  partly  by  them,  in  cases  to  which  they  apply ; 
and  partly  in  all  cases  to  which  the  rules  and  orders  are  not  appli- 
cable, by  rules  drawn  from  the  common  parliamentary  law  as  above 
explained.^ 

794.  But,  though  it  is  essential  to  regularity  of  proceeding,  that 
a  legislative  assembly  should  possess  rules  and  orders  for  its  gov- 
ernment, and  that  every  member  should  have  the  right  to  insist 
upon  their  observance ;  yet  a  member  may  waive  his  right,  and  the 
assembly  itself,  on  a  proper  occasion,  may  dispense  with  its  own 
rules.  Hence  it  is  an  estabhshed  practice,  in  all  our  legislative 
assemblies,  to  do  any  matter,  or  to  take  any  course  of  proceeding, 
which  is  contrary  to  the  rules,  provided  it  is  done  by  general  con- 
sent, that  is,  no  member  interposing  an  objection.  Hence,  also,  it 
is  an  established  practice,  whether  an  individual  objection  is  prop- 
erly interposed  or  not,  for  the  assembly  itself,  on  a  motion  and 

•      « 

1  J.  of  H.  27th  Cong.  1st  Sess.  36,52;  Cong,  cases  to  which  they  are  applicable,  and  in 
Globe,  IV.  99 ;  Cong.  Globe,  XI.  341.  which   they  are   not  inconsistent    with    the 

2  The  139th  rule  of  the  house  of  representa-  standing  rules  and  orders  of  the  house  and 
tives  in  congress  provides,  that  "  The  rules  of,  the  joint  rules  of  the  senate  and  house  of 
parliamentary  practice,  comprised  ij    .Jcffer-  representatives." 

eon's  Manual,  shall  govern  the  hout^  in  all 


Ceiap.  v.]  rules  op  proceeding.  313 

vote  to  that  effect,  to  dispense  \vith  any  one  or  all  of  its  rules,  on 
some  particular  occasion.-  The  assembly  may,  in  this  way,  dis- 
pense wilh  its  unwTitten  as  well  as  its  written  rules  and  unless 
otherwise  required  in  the  rules  themselves,  the  dispensing  may  take 
place  by  the  ordinary  major  vote.  These  rules,  touching  the  dis- 
regarding of  the  rules,  by  general  consent,  and  dispensing  with 
them  by  a  vote,  apply  only  to  the  rules  which  the  assembly  has 
itself  ado})ted,  and  not  to  those  which  are  prescribed  by  constitu- 
tion or  law,  and  which  cannot  be  abrogated  ev.en  by  general  con- 
sent. 


Section  IV.     Of  the  Forms  in  which  the  Proceedings  of  a 
Legislative  Assembly  are  expressed. 

795.  The  various  topics,  which  engage  and  occupy  the  attention 
of  a  legislative  assembly,  are  brought  to  its  notice,  either  by  the 
communications  which  ar6  made  to  it  from  external  sources,  as,  for 
example,  the  executive  or  the  other  branch,  —  official  bodies  or 
persons,  —  its  constituents;  or  from  the  suggestions  of  its  own 
members,  relative  to  matters  of  public  concern,  in  which  it  has 
jurisdiction  to  interfere. 

796.  In  proceeding  upon  the  matters  thus  brought  before  it,  the 
principal  forms  or  instruments  made  use  of  by  the  house  are  motions, 
orders,  resolutions,  addresses,  bills ;  all  of  which  will  be  fully  treated 
of  and  explained  hereafter;  it  being  at  present  only  proposed  to 
give  some  general  idea  of  certain  of  these  parts  of  the  mechan- 
ism of  parliamentary  proceedings. 

1.   Motion  or  Vote. 

797.  A  motion  is  a  proposition  made  to  the  assembly  by  one 
member,  and  seconded  by  another,  that  the  assembly  do  something 
or  order  something  to  be  done,  or  express  an  opinion  with  regard  to 
some  matter  or  thing.  K  the  proposition  is  agreed  to,  it  becomes 
an  order,  or  resolution,  or  whatever  else  it  purports  to  be.  Every 
matter  of  business  must  be  commenced  and  set  in  progress  by 
means  of  a  motion,  in  the  first  instance,  and  must  be  carried  for- 
ward, at  every  stage  of  its  progress,  in  the  same  manner.  If  not 
thus  forwarded,  a  measure  remains  precisely  where  it  is  left  by  the 
last  proceeding  upon  it. 

27 


314  .LEGISLATIVE   ASSEMBLIES.  [PaRT   IV. 


2.    Order. 

798  AYhen  the  house  directs  or  commands  any  thing  to  be 
done,  either  by  its  members,  its  officers,  or  others,  its  will  is 
expressed  in  the  form  of  an  07'der ;  thus,  it  orders  that  a  petition 
be  referred  to  a  committee,  —  that  it  lie  on  the  table,  —  that  it  be 
printed ;  that  a  bill  be  read  the  first,  second,  or  third  time,  —  that  it 
be  engrossed,  —  that  it  be  committed  or  printed ;  that  certain  per- 
sons attend  the  house;  that  a  debate  be  adjourned;  that  a  certain 
person  be  taken  into  custody.  When  the  house  orders  any  thing 
to  be  done  by  itself,  or,  in  other  words,  forms  and  declares  its  inten- 
tion to  do  something  in  the  ordinary  course  of  its  proceedings,  it 
expresses  itself  in  the  foi-m  of  a  resolution  ;  as,  that  it  will  resolve 
itself  into  a  committee  of  the  whole  on  a  given  day,  —  or  that  a 
bill  do  pass.  Resolutions  of  this  kind,  must  not  be  confounded 
with  resolutions  properly  so  called. 


3.   Resolution. 

799.  When  the  house  expresses  any  opinion,  with  reference  to 
any  subject  before  it,  either  public  or  private;  or  its  will  to  do 
something  at  a  given  time,  (not  incidental  to  the  ordinary  course 
of  business) ;  or  declares  its  adoption  of  general  orders  relative  to 
its  proceedings ;  in  all  these  cases,  it  expresses  itself  in  the  form  of 
resolutions ;  thus  it  resolves  upon  the  sessional  and  standing  orders ; 
that  a  standing  committee  be  appointed  ;  that  the  explanation  given 
by  a  member  is  satisfactory  ;  that  private  petitions  be  not  received 
after  a  certain  time ;  that  it  entertains  certain  opinions ;  that  the 
thanks  of  the  house  be  given  to  certain  persons.  It  is  not  easy  to 
understand,  so  as  to  describe  with  accuracy,  all  the  occasions  on 
which  the  one  or  the  other  of  these  terms,  ordered  or  resolved,  is 
most  proper.^  Besides,  the  use  of  them  does  not  appear  to  be 
uniform.  In  the  earlier  journals  of  the  house  of  commons,  those, 
for  example,  of  a  hundred  and  fifty  years  ago,  the  word  resolved  is 
frequently  used,  where  the  word  ordered  would  now  be  found. 
Perhaps  the  distinctions  above  indicated  may  be  sufficient  to  sug- 
gest the  proper  use  of  these  terms.     It  is  often  very  important  to 

^"When   the  house  commands,  it  is  by     the  fonn  of  resolutions."    Jefferson's  Manual, 
at'  'order.'    But  fact,  principles,  their  own     §  XXI. 
opmions,    and   purposes,   are   expressed   in 


Chap.  V.]  rules  of  proceeding.  315 

distinguish  "orders,"  on  the  one  hand,  and  "joint  resolutions," 
on  the  other,  from  "  resolutions,"  properly  so  called,  as  the  different 
classes  of  papers  are  ordinarily  subject  to  different  rules  of  proceed- 
ing.i 

800.  It  is  a  common  course  of  proceeding,  for  the  house  to  agree 
to  certain  resolutions,  either  reported  by  a  committee,  or  introduced 
by  a  member,  as  the  basis  of  proceedings  to  be  afterv^'^ards  insti- 
tuted, in  the*  form  of  an  address,  impeachment,  or  biU;  in  which 
case,  the  practice  is  to  refer  the  resolutions  to  a  committee  for  the 
purpose  of  being  put  into  the  proper  form.  Resolutions  of  this  de- 
scription are  sometimes  made  the  joint  act  of  both  branches,  by 
being  first  agreed  to  in  one  branch,  and  then  sent  to  the  other  for 
its  concun-ence. 

801.  Orders  or  resolutions,  by  whichever  name  they  may  be  \yr 
called,   which   direct  the   doing   something   prospectively  by  the 
assembly  itself,  or  that  it  wiU,  at  a  given  time,  do  a  certain  thing, 
must  be  carefully  distinguished  from  those  which  require  the  doing 

of  a  thing  by  an  individual  member,  even  though  the  execution 
of  the  order  wdU  have  an  effect  upon  the  business  of  the  house. 
In  the  latter  case,  when  the  time  arrives,  the  individual  or  member 
upon  whom  the  order  is  made,  proceeds  to  execute  it  in  the  manner 
therein  directed.  In  the  former  case,  the  house  must  determine, 
when  the  time  arrives,  whether  it  will  then  proceed  to  execute  its 
own  intention  or  not ;  for  no  resolution  of  the  house,  however 
stringently  expressed,  can  ever  constrain  or  absolutely  bind  itself  to 
the  doing  of  a  future  act.  Thus  if  the  house  directs  the  speaker,  at  a 
given  point  of  time  to  adjourn  the  house,^  on  the  arrival  of  the  time 
in  question,  he  pronounces  the  house  adjourned  accordingly ;  but, 
if  the  house  makes  a  special  order  for  the  consideration  of  a  par- 
ticular subject  at  a  given  time,  or  assigns  a  time  therefor  by  resolu- 
tion, it  must,  on  the  arrival  of  the  time,  determine,  by  a  question, 
whether  it  will  then  proceed  to  execute  its  own  intention  or  not. 


4.   Address. 

802.  An  address  is  the  form  in  which  the  wishes  or  requests  of 
the  two  houses,  or  either  of  them,  are  expressed  and  made  known 
to  the  executive.  In  England  this  form  of  proceeding  is  not  infre- 
quent; the  sovereign  being  addressed  in  answer  to  the  royal  speech 

ij.  of  H.  32d  Cong.  1st  Sess.  679;    Cong.         »  Cong.    Globe,  XIU.  214,   215. 
Globe,  XVII.  281. 


316  LEGISLATIVE  ASSEMBLIES.  [PaRT   IV. 

at  the  commencement  of  the  sessions  —  for  copies  of  papers,  —  and 
for  other  important  information,  —  expressing  confidence,  or  the 
want  of  it  in  ministers,  —  or  for  the  removal  of  public  officers  hold- 
ing their  appointment  under  the  crown.  In  this  country,  addresses 
were  formerly  in  frequent  use ;  but  at  the  present  day,  they  are 
chiefly  resorted  to,  being  provided  for  the  purpose,  and  regu- 
lated by  the  several  constitutions,  for  the  removal  of  judicial 
officers. 


LAW  AND   PEACTICE 


ov 


LEGISLATIVE   ASSEMBLIES. 


PART    FIFTH. 

OF   COMMUNICATIONS   BETWEEN  THE    DIFFERENT  BRANCHES 

OF  A  LEGISLATIVE  BODY,  AND  BETWEEN  THEM  OR  EITHER 

OF  THEM  AND  OTHER  BODIES   OR  PERSONS. 

(817  ^ 
27* 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    FIFTH. 

OF  CO:\IMUNICATIONS  BETWEEN  THE  DIFFERENT  BRANCHES 
OF  A  LEGISLATIVE  BODY,  AND  BETWEEN  THEM  OR  EITHER 
OF  THEM  ^IND   OTHER  BODIES   OR  PERSONS. 


803.  Having  treated,  in  the  preceding  parts  of  this  work,  of  the 
election,  constitution,  and  incidental  powers,  of  a  legislative  assem- 
bly, and  enumerated  its  general  powers  arid  functions,  it  will  now  be 
useful,  also,  before  describing  its  forms  and  itiethods  of  proceeding, 
within  itself,  to  consider  the  relations  which  it  bears  to  other  bodies 
and  persons  without,  by  means  of  a  communication  with  which  its 
business  is  not  only  conducted,  but  it  obtains  possession  of  the 
materials  upon  which  the  greater  part  of  its  proceedings  are 
exercised.  This  part  is  therefore  devoted  to  the  subject  of  the  com- 
munications which  take  place  between  the  two  houses ;  betu^een 
either  of  them  and  the  executive  ;  and  between  them  or  either  of 
them  and  other  official  bodies  or  persons,  or  individuals,  or  the  pub- 
lic in  general;  in  the  course  of  the  performance  of  their  legislative 
and  other  official  functions.  These  several  subjects  are  arranged 
and  treated  of  undci'  the  following  heads  or  divisions,  namely :  — 
I.  Communications  betw'^een  the  two  Houses;  H.  Communica- 
tions oi  ihe  two  Houses,  or  either  of  them,  with  the  Executive; 

(319) 


320  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

III.  Accounts,  —  Papers,  —  Returns ;  —  presented  in  pursuance  of 
Orders,  or  in  obedience  to  Acts  of  Parliament ;  IV.  Witnesses,  and 
their  Attendance  and  Examination,  before  either  House,  or  Commit- 
tees ;  V.  Hearing  Parties  interested ;  VI.  Public  Officers  subject 
to  the  Order  of  the  House ;  VII.  Petitions. 


CHAPTER    FIRST. 

OF   COMMUNICATIONS    BETWEEN    THE    TWO    BEANCHES. 

804.  The  two  branches  of  a  legislative  assembly  being  members 
of  the  same  body ;  convened  and  sitting  at  the  same  time ;  charged 
with  the  performance  of  the  same  or  analogous  functions ;  simul- 
taneously engaged  in  the  exercise  of  those  functions ;  and  required 
by  their  constitution,  though  proceeding  separately  and  indepen- 
dently, to  concur  in  the  doing  of  every  legislative  act ;  they  have 
frequent  occasion,  both  in  the  incidental  and  preliminary,  as  weU 
as  the  final,  proceedings,  to  communicate  with  each  other,  in  refer- 
ence to  the  several  matters  about  which  they  are  employed.  The 
regular  modes,  by  which  these  communications  take  place,  are 
three,  namely  :  —  I.  By  message  ;  II.  By  conference ;  and.  III.  By 
committees. 


Section  I.     Communications  by  Message. 

805.  This  form  of  communication,  which  is  the  most  simple,  and 
the  most  frequently  resorted  to,  consists,  as  its  name  indicates,  in 
the  sending  of  a  member,  or  other  appropriate  person,  by  the  one 
house  to  the  other,  either  to  inform  the  latter  of  some  fact,  or  to 
communicate  some  request,  or  both,  on  the  part  of  the  former. 
Messages  pass  between  the  two  houses  for  a  great  variety  of  pur- 
poses, but  more  especially  at  the  present  day  in  relation  to  the 
proceedings  on  bills.  These  purposes  wiU  be  particularly  noticed, 
in  connection  with  the  subjects  to  which  they  relate.  At  present, 
the  forms  of  proceeding  only  are  to  be  adverted  to.  Messages  are 
also  the  commencement  of  the  other  and  more  important  modes  of 
intercourse  between  the  two  houses,  by  means  of  conferences  and 
committees. 


Chap.  I.]  communications  by  message.  321 

806.  Messages  from  the  lords  to  the  commons  are  not  sent  by 
members,  but  ordinarily  by  two  of  the  masters  in  chancery,  who 
are  attendants  upon  the  lords  ;  and,  on  special  occasions,  by  two  of 
the  judges,  who  are  their  assistants.  The  special  occasions,  on 
which  the  latter  are  sent  as  messengers,  occur,  for  the  most  part, 
though  there  are  others,^  when  bills  relating  to  the  crown  or  royal 
family  are  to  be  sent  to  the  commons.^ 

807.  If  the  persons,  who  are  regularly  to  be  employed  as  mes- 
sengers from  the  lords,  do  not  happen  to  be  present,  when  a  mes- 
sage is  to  be  sent,  other  persons  attending  the  lords  are  substituted 
in  their  stead.  If  the  judges  are  on  the  circuit,  or,  for  other  causes, 
only  one  is  in  attendance,  when  an  occasion  occurs  for  sending  a 
message  by  them,  the  message  may  be  sent  by  one  judge  and  one 
master  in  chancery.  If,  on  ordinary  occasions,  two  masters  in 
chancery  do  not  happen  to  be  in  attendance,  a  message  may  be 
sent  by  one  master  and  the  clerk  assistant;  or,  if  no  master  in 
chancery  is  present,  the  clerk  assistant,  and  the  additional  clerk 
assistant,  or  the  reading  clerk  may  be  sent  with  the  message. 
Whenever  a  message  is  sent  in  this  manner,  the  lords  at  the  same 
time  acquaint  the  commons  with  the  reasons  which  have  induced 
them  to  depart  from  the  ordinary  practice ;  and  the  commons,  on 
receiving  the  message,  immediately  come  to  a  resolution,  which, 
at  a  convenient  time,  either  immediately  or  after  an  interval  of 
some  days,  they  communicate  to  the  lords  by  messengers  of 
their  own,  acquiescing  in  the  reasons  assigned  by  the  lords,  but 
"  trusting  that  the  same  will  not  be  drawn  into  precedent  for  the 
future."  ^ 

808.  Messages  from  the  commons  to  the  lords  are  always  sent 
by  members.  The  ancient  and  accustomed  form  is  to  send  by  one 
member,  who,  upon  motion  made,  and  question  put,  is  named  by 
the  house  as  the  bearer  of  the  message.  The  member,  thus  ap- 
pointed, is  usually  selected  either  from  having  been  the  promoter, 
or  having  had  charge,  of  the  bill  which  is  to  be  sent,  or  for  his  known 
approbation  of  the  subject-matter  of  the  message.  But  the  bearer 
of  the  message,  though  a  single  member,  must  be  accompanied  by 
others,  to  the  number  of  seven  at  least ;  as  it  is  the  rule  and  prac- 
tice of  the  house  of  lords  not  to  receive  a  message  from  the  com- 
mons, unless  eight  members  attend  with  it.*    The  member,  selected 

1  Comm.  Jour.  IX.  361.  which  fonned  a  quorum  of  a  select  cominittee, 

3  May,  319,  320.  and  was  probably,  for  this  reason,  adopted  as 

»  May,  319,  320.  the  number  for  carrjing  a  m'Jssage  to  th» 

*  "  Eight  was  formerly  the  common  number  house  of  lords."    May,  320. 


322  LEGISLATIVE   ASSEMBLIES.  '  [PaRT    V 

as  the  bearer  of  the  message,  is  not  at  liberty  to  decline  the  ordei 
of  the  house,  or  to  neglect  or  refuse  obedience  to  it,  without  being 
guilty  of  a  contempt.^  The  attendance  of  other  members  appears 
to  be  voluntary ;  and,  for  the  purpose  of  obtaining  it,  when  the 
bearer  of  the  message  takes  it  from  the  table,  the  speaker  always 
calls  aloud  to  the  house,  "  gentlemen,  attend  your  messenger."  In 
bills  that  have  passed  the  house  of  commons  with  a  general  con- 
currence, and  in  other  messages,  in  which  the  house  of  commons 
wish  to  show  then-  approbation  of  the  measure,  it  is  customary  for 
a  great  number  of  members  to  follow  .the  messenger,  and  to  attend 
him  to  the  bar  of  the  house  of  lords.^ 

809.  The  form  of  receiving  messengers  from  the  commons  in  the 
house  of  lords,  according  to  the  standing  orders  of  the  latter  house, 
is  as  follows.  The  messengers  proceed  to  the  house  of  lords,  and 
sio"nify  the  pm-pose  of  their  attendance  to  the  usher,  who  informs 
the  lords  of  the  message.  The  lords,  thereupon,  if  not  engaged  in 
any  business,  or  first  bringing  the  business  in  which  they  are  en- 
gaged "  to  some  end,"  send  for  the  messengers,  who  are  admitted 
and  take  their  places  at  the  lower  end  of  the  room.  The  lord 
chancellor  then  rises,  and,  with  such  lords  as  please,  goes  down  to 
the  middle  of  the  bar ;  then  the  bearer  of  the  message,  in  the  midst, 
and  the  rest  about  him,  come  up  to  the  bar,  making  three  obei- 
sances, and  there  delivers  the  message  to  the  lord  chancellor,  who, 
after  receiving  it,  retires  to  his  place,  and  the  messengers  withdraw. 
When  the  house  is  cleared  and  settled,  the  lord  chancellor  reports 
the  message  with  the  assistance  of  the  other  lords,  if  his  memory 
happens  to  be  at  fault,  in  respect  to  any  part  of  it,  and  the  house 
then  proceeds  to  consider  the  message."^ 

810.  The  ceremony  of  receiving  messages  from  the  lords  in  the 
house  of  commons  is  thus  described :  "  The  messenger  from  the 
lords  proceeds  to  the  house  of  commons,  and  if  that  house  be  then 
engaged  in  business  which  will  not  admit  of  immediate  interrup- 
tion, he  takes  a  seat  below  the  bar  until  he  can  be  received.  It  is 
usual,  however,  to  admit  him  when  the  member  then  addressing 
the  house  has  resumed  his  seat.  For  this  purpose  the  sergeant-at- 
arms  goes  up  to  the  table,  maldng  three  obeisances,  and  acquaints 
the  speaker  that  there  is  a 'message  from  the  lords;'  after  which 
he  retires  to  the  bar.  The  speaker  then  acquaints  the  house  that 
there  is  a  message  from  the  lords,  and  puts  a  question,  that  the 

1  Grey,  IX.  305.  »  May,  321, 

«  Hatsell,  III.  27,  28. 


Chap.  I.]"  communications  by  message.  323 

messenger  bo  now  called  in  ;  which  being  agreed  to,  as  a  matter  of 
course,  he  directs  the  sergeant  to  call  in  the  messenger.  The  ser- 
geant again  advances  to  the  table,  and  takes  the  mace,  wilh  which 
he  introduces  the  messenger,  and  walks  up  to  the  table  of  the  house 
on  his  right  hand.  They  both  make  three  obeisances  in  coming  up 
the  house,  and,  on  reaching  the  talkie,  the  master  reads  the  message ; 
and,  when  there  are  bills,  delivers  them  to  the  clerk  of  the  house. 
The  sergeant  retires  with  him  to  the  bar  (both  making  obeisances), 
and  then  returns  and  replaces  the  mace  upon  the  table."  ^ 

811.  If  a  message  is  of  such  a  nature  as  to  require  an  answer, 
the  messengers  remain  in  attendance  in  the  lobby,  for  the  purpose 
of  receiving  it.  If  the  business  admits  of  an  answer  being,  given 
immediately,  the  house  proceeds  at  once  to  resolve  upon  the  proper 
answer;  and  if  it  accedes  to  the  request  contained  in  the  message, 
the  messengers  are  called  in  and  informed  of  it  bv  the  lord  chan- 
cellor  or  speaker,  as  the  case  may  be.  If  the  business  does  not 
admit  of  an  immediate  answer,  or  if  the  business  in  which  the 
house  is  engaged  does  not  allow  the  message  to  be  then  consld- 
ered,2  or  if  the  answer  is  in  the  negative,^  the  messengers  are  called 
in  and  acquainted  (in  the  lords  they  are  sent  to  and  informed  by 
the  usher)  that  the  house  will  send  an  answer  by  messengers  of 
its  own.* 

812.  In  the  commons,  when  a  message  is  received  from  the  lords 
by  persons  who  are  not  ordinarily  employed  as  messengers,  with  a 
statement  of  the  reasons  for  deviating  from  the  usual  practice,  no 
other  answer  is  returned  by  the  messengers,  than  that  the  house 
will  send  an  answer  by  messengers  of  their  own,  even  though  the 
subject  of  the  message  is  acted  upon  forthwith,  and  an  answer 
agreed  to.  The  answer  is  communicated  by  the  commons  to  the 
lords  by  messengers  of  their  own.  The  lords  are  also  informed,  at 
the  same  time,  or  by  a  separate  message,  that  the  commons  have 
acquiesced  in  the  reasons  given  by  the  former  for  deviating  from 
the  ordinary  practice;^ 

813.  The  messengers  are  to  receive  and  communicate  the  an- 
swer, if  there  is  one,  to  the  message  which  they  deliver ;  or  to 
inform  the  house  to  which  they  belong,  that  the  other  will  send  an 
answer  by  messengers  of  their  own  ;  but  it  is  not  according  to 
parliamentary  usage,  for  the  house  to  which  a  message  is  sent,  to 

I  UFay,  321,  322.  ♦  Hatsell,  III.  29. 

«  Coinni.Jour.  IX.  152.  *  Pari.  Reg.  LVI.  638,  641;  Comm.  Jour. 

»  Coiuiu.  .lonr.  I.  156,  200,  492,  498,  813.  LV.  539.  542. 


324  LEGISLATIVE    ASSEMBLIES.  *  [PaRT  V. 

send  a  message  to  the  other  by  the  messengers  of  that  house.^ 
The  same  messengers  may  be,  and  often  are,  the  bearers  of  several 
different  messages  at  the  same  time ;  and  both  the  terms  of  the 
message,  and  the  persons  to  be  sent  as  messengers,  are  the  subjects 
of  orders,  moved,  debated,  and  agreed  to,  in  the  usual  course  of 
proceeding. 

814.  The  business  of  the  house,  by  which  a  message  is  sent,  is 
not  interrupted  while  their  messengers  are  proceeding  to  or  are  at 
the  other  house.  But,  in  the  house  to  which  a  message  is  sent,  it 
is  the  practice  to  discontinue  or  suspend  the  business  in  hand,  as 
soon  as  may  be  after  the  message  is  announced,  so  as  not  unneces- 
sarily .to  detain  the  messengers.^  Thus,  if  the  house  is  in  a  com- 
mittee of  the  whole,  when  a  message  is  sent  to  it,  the  committee 
rises  and  the  house  is  resumed,  for  the  purpose  of  receiving  the 
message  ;  -^  so,  when  the  house  is  engaged  in  debate,  the  business 
is  suspended  without  a  formal  adjournment  of  the  debate ;  and  the 
message  received.^  K  a  member  happens  to  be  speaking,  at  the 
time  the  messengers  attend,  it  is  not  usual  to  receive  them  until  the 
member  has  resumed  his  seat ;  but  as  this,  in  some  cases,  might 
amount  to  a  very  long  detention,  it  is  competent  for  the  speaker  to 
interrupt  the  member  speaking,'^  or  to  interrupt  a  member  in  pre- 
senting a  petition,*^  in  order  to  receive  the  message.  When  the 
message  has  been  received  and  disposed  of,  either  finally,  or  for  the 
time  being,  the  house  again  resolves  into  the  committee,  or  pro- 
ceeds with  the  debate  or  oiher  business  which  was  interrupted  ;  the 
business  being  taken  up  precisely  where  it  was  suspended,  and  a 
member  interrupted  in  his  speech,  or  other  proceeding,  at  the  point 
where  he  was  interrupted."  But,  though  the  admission  of  the  mes- 
sengers, as  above  stated,  is  generally  a  matter  of  course  ;  yet,  where 
the  house  is  informed  of  their  attendance,  a  motion  is  always  made 
and  a  question  put,  or  supposed  to  be  so,  for  calling  them  in  ;  and 
this  question  may  be  (and  on  one  occasion,  at  least,  was)  decided 
in  the  negative.^ 

815.  It  appears  to  have  been  an  ancient  order,  that  one  house 

1  Hatsell,  m.  22;  Hatsell,  IV.  35;  Comm.  *  Pari.  Reg.  XLIII.  56;   Comm.  Jour.  LL 

Jour.  I.  426,  813.  6;  Hatsell,  III.  30,  31. 

«  May,  322.  »  Pari.  Reg.  LXIII.  769,  770;  Cong.  Globe, 

8  Grey,  IV.  226;  Same,  IX.  148,  150,  153;  XI.  618;  Cong.  Globe,  XVIlI.  167. 

Comm.  .Jour.  X.  45;  Hatsell,  III.  30,  31;  Cong.  »  Hansard  (1),  V.  843. 

Globe,  Vm.  509;  Same,  XL  298,  358,396;  '  Pari.  Reg.  LXIIL  769,  770. 

Same,  XV.  685.  »  Comm.  Jour.  XVIL  614;  see  also  J.  of 

S.  23d  Cong.  1st  Sess.  325. 


Chap.  I.]  communications  by  message.  32^ 

could  not  regularly  send  a  message  to  the  orher,  "  but  whilst  both 
houses  were  sitting,  the  speaker  of  each  house  Ijeing  in  the  chair ;  "  > 
but  this  rule  is  not  now  observed,  and  either  house  may  agree 
upon  and  send  a  message  to  the  other,  although  it  is  known  that 
the  latter  has  adjourned  lor  the  day.-  In  such  a  case,  the  messen- 
gers proceed  with  the  message,  as  soon  as  the  house  to  which  it  is 
to  be  delivered  is  sitting.-^  When  the  sending  of  a  message  is  un- 
der consideration,  and  it  is  feared  that  the  house  to  which  it  is  to 
be  sent  may  adjourn  before  the  message  can  be  agreed  upon,  a 
message  may  be  and  very  frequently  is  sent  immediately  to  the 
latter,  requesting  them  to  continue  to  sit  for  some  time,  in  order  to 
receive  a  mes.sat:;e.' 

816.  When  a  message  has  been  delivered,  and  the  messengers 
returned  to  their  own  house,  it  is  their  duty  (of  one  of  the  two  in 
the  lords,  and  of  the  bearer  of  the  message  in  the  commons),  to 
make  report  of  their  proceedings,  and  of  the  answer  of  the  house,  to 
which  the  message  was  sent."  If  the  messengers  are  unable  to  de- 
liver their  message,  in  consequence  of  the  house  to  which  they 
are  sent  being  then  adjourned,  they  should  report  that  fact,  on 
returning  to  their  own  house,  and  again  proceed  when  the  other 
house  is  next  sitting.''  If  prevented  from  delivering  their  message, 
from  any  other  cause,  as,  for  example,  by  being  refused  admittance, 
the  messengers  should  report  the  fact,  for  the  information  and  con- 
sideration of  the  house.  When  a  message  admits  or  requires  no 
answer,  —  as,  for  example,  when  bills  passed  in  one  house  are  sent 
to  the  other  to  be  there  proceeded  upon,  —  it  does  not  appear  to  be 
necessary  for  the  messengers  to  make  any  report  on  their  return. 

817.  A  message  from  one  house  to  the  other  cannot  be  received 
by  the  house  to  which  it  is  sent ; "  nor  can  an  answer  to  a  message 
be  received  by  the  house  by  which  it  is  sent,  unless  a  quorum  is 
present.^  When  such  a  case  occurs,  the  only  course  for  the  mes- 
sengers to  pursue  is  to  defer  delivering  their  message,  or  making 
their  report,  until  the  requisite  number  is  present.^ 

»  Hatsell,  III.  19.  8  Pari.  Reg.  XXXV.  632 ;  Cong.  Globe,  XI. 

»  Pari.  Reg.  XXXV.  631 ;  Hatscll,  IV.  141,      2.i3. 

lote.  9  J.  of  S.  28th  Cong.  1st  Sess.  402.     The 

'■>  Hntsell,  IV.  141,  note.  usher  of  the  black  rod,  an  ofBcer  of  the  lords, 

♦  Pari.  Reg.  XXXV.  630.  a  part  of  whose  business  it  is  to  deliver  mes- 

*  Hansard  (1),  XVIII.  804,  817.  sages   from   the   sovereign   to   the  commons, 
'  Pari.  Reg.  XLIII.  55,  56;  Coram.    Jour,      with  a  message  from  the  king,  or  from  lords' 

I'l-  7,  10.  commissioners  authorized  by  him,  for  the  at- 

'  Pari.  Reg.  LVII.  593;  Comm.  Jour.  LV.      tendance  of  the  house   of  commons  in   the 

785;  Ilatsell,  II.  339,  note.  lords,  must  be  admitted  whether  a  qr.onim  ia 

28 


326  LEGISLATIVE   ASSEMBLIES.  [PaKT    V 

818.  AYhen  there  is  any  mistake  in  a  message,  either  as  sent  or 
delivered,  it  appears  to  be  the  custom  for  the  house  by  which  it  is 
sent  to  correct  the  mistake  by  a  subsequent  message,  and  for  the 
house  to  which  it  is  sent,  to  discharge  any  order  predicated  on  such 
erroneous  message.^  K  the  mistake  is  perceived  before  the  mes- 
sengers have  returned,  they  may  be  called  in  to  correct  it,  if  it  has 
occun-ed  in  the  delivery  ;  but  in  this  case,  if  the  mistake  is  a  merely 
verbal  one,  which  cannot  possibly  give  rise  to  any  error  or  misunder- 
standing, as,  for  example,  where  messengers  from  the  lords  inform- 
ed the  commons  that  the  house  of  commons  had  sent  them  a  bill, 
etc.,  it  is  most  proper  to  overlook  the  error,  and  to  consider  the  mes- 
sage as  expressing  what  was  evidently  intended  by  it.'^  If  the  mis- 
take is  one  which  belongs  to  the  message  as  sent,  and  not  as 
delivered,  or  if  it  is  equivocal  in  its  terms,  the  messengers  may 
be  called  in  and  receive  for  answer,  that  the  house  desires  of  the 
other  house  a  correction  or  explanation  ;  as,-  for  example,  where  the 
commons  had  sent  several  messages  to  the  lords  on  the  same  day, 
and  the  lords  sent  them  a  message  desiring  a  present  conference 
"  upon  the  subject-matter  of  their  message,"  to  the  lords,  the  mes- 
sengers were  called  in,  and  acquainted  by  the  speaker,  "  that  the 
commons,  having  sent  several  messages  this  day  to  the  lords,  do 
desu-e  to  know  from  their  lordships,  upon  the  subject-matter  of 
which  message,  their  lordships  desire  a  present  conference."  The 
same  messengers  returned  immediately  with  a  message  specifying 

present  or  not,  and  the  members  present  must  the  bills  alluded  to,  upon  a  private  intimation 
thereupon  immediately  attend  the  king  or  the  that  they  had  passed  the  lords  without  amend- 
commissioners  in  the  house  of  lords.  The  ment.  The  speaker  then  presented  the  bills 
opposition  between  this  rule,  and  that  stated  to  the  commissioners,  from  whom  they  re- 
in the  text,  led,  on  one  occasion,  to  a  curious  ceived  the  royal  assent.  On  the  return  of  the 
state  of  things  in  the  house  of  commons,  commons,  the  speaker  reported  that  the  house 
That  house  had  passed  certain  money  bills,  had  been  at  the  lords,  where  the  royal  assent 
and  had  sent  them  to  the  house  of  lords,  where  was  given  to  certain  bills,  among  which  were 
they  had  passed  without  amendment;  the  the  money  bills  above  mentioned.  Forty 
lords  then  sent  them  to  the  house  of  commons,  members  being  then  present,  and  the  lords' 
with  a  message  to  infoiTn  the  latter  of  their  messengers  in  attendance,  they  were  called 
being  so  passed.  The  bills  were  placed  upon  in,  and  delivered  their  message  to  acquaint 
the  table  of  the  commons ;  but,  as  forty  mem-  the  commons  with  the  agreement  of  the 
bers  were  not  present,  the  messengers  could  lords  to  the  same  bills,  to  which  the  royal  as- 
not  be  admitted  with  their  message.  In  the  sent  had  just  been  reported  to  be  given, 
mean  time,  the  usher  of  the  black  rod  came  The  speaker  thereupon  explained  what  he 
with  a  message  from  the  lords'  commissioners,  had  done,  which  was  approved  of  by  the 
directing  the  attendance  of  the  commons  in  house,  and  a  special  entry  to  that  effect,  at 
the  house  of  lords,  and  being  admitted  and  his  suggestion,  made  on  the  journal.  Comm 
having  delivered  his  message,  the  speaker.  Jour.  LV.  783,  785. 
with  the  members  present  immediately  went  i  Hatsell,  III.  23,  26. 
to  the  lords;  the  speaker  carrying  with  him  *  Grey,  IV.  39,  41. 


Chap.  L]  communications  by  conference.  327 

more  particularly   the  subject-matter  upon   which  the  conference 
was  desired.^ 

819.  In  this  country,  messages  from  one  branch  of  a  legislative 
body  to  the  other  are  commonly  sent,  on  ordinary  occasions  of 
business,  by  the  clerk  or  secretary  of  each  branch,  respectively,  or 
some  subordinate  officer  of  his  department ;  -  but  on  extraordhiary 
occasions,  or  in  reference  to  matters  of  importance,  they  may  be, 
and  usually  are,  sent  by  members ;  and  no  reason  is  ever  given  or 
demanded  for  sending  by  unusual  messengers.  The  names  oi 
messengers  are  always  to  be  entered  on  the  journals. 


Section  II.     Communications  by  Conference. 

820.  The  second  mode  of  communication  between  the  two 
houses  is  by  means  of  a  conference ;  in  which,  as  its  name  imports, 
the  communication  takes  place  in  the  presence  of  both  houses, 
either  actually,  or  by  deputations  of  their  members.  This  is  a  more 
formal  and  ceremonious  mode  than  that  akeady  described.  It  is 
conducted  by  members  appointed  for  the  purpose ;  is  held  in  a 
room  distinct  from  those  occupied  by  the  two  houses  when  sitting ; 
and  so  entirely  are  both  supposed  to  be  engaged  in  the  proceeding, 
while  the  managers  are  at  the  conference,  that  the  usual  and  ordi- 
nary business  of  both  houses  is  in  the  mean  time  suspended.  When 
it  is  the  purpose  of  a  communication  between  the  two  houses  to 
explain  opinions,  or  to  reconcile  differences,  or  to  induce  one  of  the 
houses  to  waive  a  proceeding,  or  form  of  proceeding,  which  the 
other  deems  unparliamentary,  a  conference  is  supposed  to  be  more 
respectful  and  better  calculated  to  effect  the  object  in  view  than  a 
message. 

821.  It  would  not  be  easy  to  express,  by  any  general  rule,  the 
difterent  occasions  on  which  a  conference  or  a  message  would  be 
the  most  appropriate  and  effectual  form  of  communication.  The 
purposes  for  which  messages  are  commonly  employed  have  already 
been  alluded  to.  The  most  usual  occasions,  upon  which  it  is  com- 
petent for  either  house,  according  to  the  practice  of  parliament,  to 
demand  a  conference  wdth  the  other,  may  be  arranged  imder  the 

1  Comm.   Jour.   XXXII.   92;    Cavendish's      I7th  Cong.  1st  Sess.  139;  Same,  17th  Coug. 
Debates,  I.  82,  83.  h\  Sess.  7 ;  J.  of  S.  17th  Cong.  2d  Sess.  233 ;  J. 

»  J.  of  S.  I.  465;  Same,  V.  403;  J.  of  H.      of  H.  30th  Cong.  1st  Sess.  896. 


328  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

following  heads,  namely:  1,  to  communicate  resolutions  or 
addresses,  to  which  the  concurrence  of  the  other  house  is  desired ; 
2,  concerning  the  privileges  of  the  two  houses  with  relation  to  one 
another ;  3,  in  relation  to  the  course  of  proceedings  of  one,  in 
which  the  other  is  concerned;  4,  to  require  or  to  communicate 
statements  of  facts,  on  which  bills  have  passed  or  other  proceedings 
have  taken  place ;  and,  5,  to  offer  reasons  for  disagreeing  to,  or 
insisting  on,  amendments  made  by  one  house  to  bills,  resolutions, 
or  addresses,  passed  or  agreed  upon  in  the  other.^  This  classifica- 
tion, though  it  may  not  perhaps,  be  found  to  embrace  all  the 
occasions,  upon  which  conferences  have  taken  place,  will  neverthe- 
less serve  to  give  some  general  idea  of  the  various  matters,  in 
reference  to  which  this  form  of  communication  may  be  adopted. 

822.  It  is  not  always  a  matter  of  indifference,  even  when  there 
may  be  a  fit  occasion  for  a  conference,  at  what  time,  or  by  which 
house,  the  conference  is  requested ;  for,  as  it  is  the  duty  of  the  two 
houses,  on  all  occasions,  to  maintain  a  good  understanding  and 
cooperation  with  one  another,  and  to  allow  each  other  to  proceed, 
n  the  discharge  of  their  respective  duties,  with  perfect  freedom  and 
independence,  it  would  not  be  proper  for  one,  by  means  of  a  con- 
ference, to  interfere  with,  and  anticipate,  or  endeavor  to  influence, 
the  proceedings  of  the  other,  until  that  other  has  first  acted  upon  the 
subject  in  question.  Thus,  while  a  bill,  which  has  passed  in  one 
house,  and  been  sent  to  the  other,  is  there  pending  and  under  con- 
sideration, it  is  irregular  for  the  former  to  take  any  notice  of  the 
proceedings  in  the  latter,  and  to  demand  a  conference  thereon. 
This  rule,  which  lies  at  the  foundation  of  the  freedom  and  inde- 
pendence of  the  two  houses,  as  regards  one  another,  was  estab- 
lished at  a  very  early  period  of  parliamentary  history ;  ^  and,  though 
originally  restricted  in  its  terms  to  bills,  the  principle  of  it  is  so 
obviously  convenient  and  proper,  that,  for  a  long  course  of  years,  it 
has  been  extended  and  apphed  as  a  general  rule  to  resolutions  and 
all  other  matters,  which  have  been  communicated  from  the  one  house 


1  This  is  substantially  the  classification  sage  to  the  commons  requesting  that  certain 
adopted  by  Mr.  May,  (p.  323);  except  that  committees  appointed  to  have  conference  with 
his  fifth  head  is  included  under  the  fourth,  the  lords  on  another  subject,  "  may  also  have 
where,  on  examining  the  journal  to  which  he  commission  to  show  unto  their  lordships  the 
refers,  it  will  be  found  to  belong.  reasons,  which  did  move  this  house  to  deal  so 

2  In  the  18  Elizabeth  (1575),  Hansard  (2),  hardly  in  the  bill,  which  being  signed  by  her 
IV.  518,  519,  the  lords  passed  a  bill  for  the  majesty,  passed  their  lordships,  for  the  resti- 
restitution  in  blood  of  Lord  Sturton,  and  tution  in  blood  of  the  lord  Sturton;  being  a 
sent  it  to  the  commons,  where,  it  being  pro-  nobleman,  and  seeking  but  the  same  course 
posed  to  amend  the  bill,  the  lords  sent  a  mes-  and  form  of  restitution,  which  other  noble- 


Chap.  I.J  communications  by  conference.  329 

to  the  other,  and  are  there  pending  and  under  consideration.  For 
example,  if  the  commons,  at  a  conference,  communicalc  a  resolu- 
tion lo  the  lords,  and  request  the  concurrence  of  the  latter,  they 
must  wait  until  some  answer  is  returned,  before  demanding  another 
conference  on  the  same  sul)ject.  When  the  lords  are  prepared  with 
their  answer,  it  is  for  them  to  demand  a  conference  with  the  com- 
mons, for  the  purpose  of  communicating  it  to  them.^ 

823.  The  proceedings  preliminary  to  a  conference,  in  the  house 
by  which  it  is  requested,  usually  commence  by  their  coming  to  a 
resolution,  that  a  conference  be  demanded  of  the  other,  in  reference 
to  a  certain  subject.  The  next  step  is  the  appointment  of  a  com- 
mittee to  consider  of  and  draw  up  reasons,  etc.,  or  what  may  be 
proper  to  be  offered  at  the  conference.  When  this  committee  has 
reported,  and  the  house  has  thereupon  agreed  upon  the  reasons,  or 
whatever  else  is  to  be  offered  at  the  conference,  a  message  is  then 
sent  to  the  other  house,  in  the  ordinary  manner,  requesting  a  con- 
ference on  the  subject  or  matter  in  question.^  When  the  occasion 
of  conference  arises  in  the  regular  course  of  proceeding,  one  or 
more  of  these  previous  steps  is  omitted ;  as,  for  example,  when  the 
purpose  of  the  conference  is  to  communicate  reasons  for  disagree- 
ing to  amendments  to  a  bill,  the  first  step,  namely,  a  resolution  for 
a  conference,  becomes  unnecessary,  because  a  conference  is  the 
regular  course  of  proceeding,  and  the  first  step  is  therefore  the 
appointmint  of  a  committee  to  prepare  the  reasons ;  ^  so,  when  it 
is  the  object  of  a  conference  to  communicate  resolutions  merely,^  or 
to  inform  the  other  which  of  their  amendments  are  agi-eed  to  and 
which  are  not,  without  reasons  ;  ^  the  conference  may  at  once  be 

men  in  like  cases  have  done,  and  had  hereto-  and  argnments,"  it  was  answered,  "  that  by 
fore;  which  message,  l)eing  opened  unto  the  the  resolution  of  this  house,  according  to  the  • 
house   was  not   well   hked  of,  but  thought  ancient  liberties  and  privileges  of  this  house, 
perilous  and  prejudicial  to  the  liberties  of  this  conference  is  to  be  requireil   by  that  court, 
house;  whereupon,  it   was  resolved   by  this  which  at  the  time  of  the  conference  demanded, 
house,  that  no  such  reason  shall  be  rendered,  shall  be  possessed  of  the  bill,  and  not  of  [by] 
nor  any  of  this  house  to   be  appointed  unto  any  other  court:  And,  further,  that  this  house, 
any  such  commission."     The  next  day,  the  being  now  possessed  of  the  bill,  and  minding 
lords  sent  another  message  to  the  commons,  to  add  some  amendments  to  the  said  bill,  will 
"  to  desire  conference  with  such  of  this  house,  (if  they  see  cause,  and  think  meet,)  pray  con- 
as  this  house  shall  appoint,  touching  confer-  ference   therein   with    their   lord#hi|)s   them- 
ence  with  their  loniships  for  the  bill  of  the  selves;  and  else  not."  —  Comni.  Jour.  I.  114. 
lord  Sturton;   which  their  lordships  do  hear         ^  May,  323. 
hath  had  otTer  of   provisos,  or  some  other         ^  Comm.  Jour.  XVIII.  376,  377. 
things,  to  the  stay  of  the  proceedings  of  the         *  Comm.  Jour.  XVIII.  200. 
Bald  bill;    whereupon,  after  sundry  motions         *  Comm.  Jour.  XXI.  932. 


'  Comm.  Jour.  X.  ulO. 


28 


330  LEGISLATIVE    ASSEMBLIES.  [PaRT   V 

requested,  A^dthout  either  of  the  above-named  preliminary  steps 
being  taken,  because  such  is  the  regular  course  of  proceeding,  and 
what  is  to  be  presented  at  the  conference  is  already  prepared. 

824.    The  message  requesting  a  conference  should  clearly  describe 
the  subject-matter  upon  which  it  is  desired,'  not  only  as  a  matter  of 
civility,  but  in  order  to  enable  the  other  house  to  judge  of  the  im- 
portance of  the  subject,  as  well  as  of  the  fitness  of  the  occasion,  or 
whether  it  may  not  relate  to  a  matter,  upon  which,  consistently 
with  the  preservation  of  their  privileges,  they  cannot  consent  even 
to  meet  and  confer.     If  this  is  not  done,  the  house  to  which  the 
application  is  made  may  decline  the  request,  on  the  ground  of  such 
omission.     Thus,  in  1641,  the  lords  having  sent  to  the  commons  to 
desire  a  conference,  without  expressing  the  subject  of  it  at  all,  the 
conference  was  dechned,  on  the  ground,  that  a  message  for  a  con- 
ference, "without  any  expression  of  the  subject  or  matter  of  that 
conference,  is  contrary  to  the  course  of  either  house."  ^     In  1678,  a 
similar  request  was-  declined  by  the  commons,  on  the  ground,  that 
it  was  "  not  agreeable  to  the  usage  and  proceedings  of  parUament, 
for  either  house  to  send  for  a  conference,  without  expressing  the 
subject-matter  of  that  conference."  ^     The  like  informality  having 
again  occurred  in  1795,  the  entries  on  the  journals  in  the  foregoing 
cases  were  read,  and  the  commons  thereupon  declined  the  confer- 
ence, for  the  reasons  given  in  the  entry  of  1678.'^    In  aU  these  cases, 
messages  were  immediately  afterwards  sent  by  the  lords,  expressing 
tiie  subject-matter  of  the  proposed  conference.     But,  in  another 
case,  where  a  conference  was  requested  by  the  lords,  "  touching 
matters  of  great  importance,"  ^  the  commons  agreed  to  the  confer- 
ence ;  but  "  it  was  observed,  and  so  declared,  that  this  message  was 
so  general,  that  the  house  was  not  bound  to  make  answer  there- 
.  unto ;  and,  though  in  this  strait  of  time,  they  are  content  to  give 
answer  to  this ;  but  have  ordered  not  to  be  bound  by  this  precedent 
for  the  future."  ^ 

825.  It  does  not  appear  to  be  necessary,  however,  to  state  in  the 
message  the  precise  subject  upon  which  a  conference  is  desired,  or, 
if  stated,  to  do  it  with  minute  distinctness ;  it  is  sufficient  if  the 
message  so  far  describes  the  subject-matter,  in  general  terms,  as  to 

1  Comm.  Jour.  11.  232.  delivered.     The  order  for  the  message  as  en- 

'  Comm.  Jour.  IX.  574.  tered  in  the  Lords'  Journal,  expresses  the  sub- 

*  Comm.  Jour.  LI.  5.  ject  of  it  with  sufficient  distinctness. 

*  In  this  case,  there  appears  to  be  a  dis-  ^  Comm.  Jour.  U.  581. 
•repancy  between  the  message  as  sent  and  as 


Chap.  I.]  communications  by  conference.  331 

show  that  there  is  a  parliamentary  ground  for  the  proceeding. 
Thus,  for  example,  the  su])joct  of  a  proposed  conference  may  be 
described  as  a  matter  "  highly  concerning  the  honor  of  his  majesty 
and  his  government,"  or  "  in  which  the  honor  and  interest  of  the 
public  are  essentially  concerned,"  or  "  highly  important  to  the  privi- 
leges of  both  houses  of  parliament."  ^  The  following  examples  will 
serve  to  show  in  what  manner,  and  how  far,  it  is  customary  to 
describe  the  subject  of  a  conference  in  the  message  by  which  it  is 
requested.  The  house  of  commons  having  agreed  upon  an  address 
for  the  removal  of  Sir  Jonah  Barrington  from  the  ollice  of  judge  of 
the  admiralty  in  L-eland,  and  having  ordered  the  same  to  be  com- 
municated to  the  lords,  and  their  concurrence  therein  desired,  at  a 
conference,  ordered  a  message  to  be  sent  to  the  lords,  to  desire  a 
conference  "upon  a  matter  of  high  importance  and  concern,  respect- 
ing the  due  administration  of  justice."'^  The  commons  having 
agreed  to  certain  resolutions  relating  to  the  affairs  and  proceedings 
of  the  East  India  Company,  ordered  them  to  be  communicated  to 
the. lords  at  a  conference,  upon  "  a  subject  of  the  highest  impor- 
tance to  the  prosperity  of  the  British  possessions  in  India."  '^  Reso- 
lutions of  the  commons,  relating  to  the  abolition  of  slavery  in  the 
West  Indies,  were  described  in  the  message,  desiring  a  conference 
for  the  purpose  of  communicating  them  to  the  lords,  as  "  a  matter 
deeply  connected  with  the  interests  of  his  majesty's  West  India 
Colonies."  ^  The  commons,  having  agi-eed  upon  an  address  to  the 
king,  to  inform  him  of  then*  determination  to  maintain  the  union 
with  Ireland,  and  having  ordered  the  same  to  be  communicated 
to  the  lords  for  their  concurrence,  sent  a  message  to  the  lords  for 
that  purpose,  requesting  a  conference  "  upon  a  matter  essential  to 
the  stability  of  the  empire,  and  to  the  peace,  security,  and  happiness 
of  aU  classes  of  his  majesty's  subjects."^  In  these  cases,  the  subject- 
matter  of  the  conference  is  not  so  stated,  as  to  give  any  distinct 
notion  of  what  it  was,  but  is  merely  described  so  as  to  show  that 
the  request  might  with  propriety  be  granted.  When  a  second  or 
subsequent  conference  is  requested,  the  subject  of  it  is  described  in 
the  message  as  that  of  the  last  conference. 

826.  Whenever  a  conference  is  requested  by  either  house,  it  is 
the  sole  privilege  of  the  lords  to  name  the  time  and  place,  at  which 
it  is  to  be  held.     If  the  commons  find  the  time  or  place  so  appointed 

1  Hatsell,  IV.  51,  52.  *  Comm.  Jour.  LXXXI.  488, 

»  Comm.  Jour.  LXXXV.  473.  »  Comm.  Jour.  LXXXIV.  232. 

•  Comm.  Jour.  LXXXYIII.  488. 


332  LEGISLATIVE   ASSEMBLIES.  [PaRT   V 

inconvenient,  as,  for  example,  if  they  have  themselves  appointed 
the  same  time  for  other  business,  which  cannot  conveniently  be 
postponed,^  or,  if  they  consider  the  place  a  dangerous  one,-  they 
may  disagree  to  holding  the  conference  at  the  time  or  place  ap- 
pointed, at  the  same  time  informing  the  lords  of  the  reasons  which 
have  induced  them  to  dechne  the  request ;  and  it  then  rests  with 
the  lords,  if  they  think  proper,  to  change  the  time  or  place.  So, 
after  the  lords  have  fixed  the  time  and  place,  they  are  at  liberty  to 
change  either  or  both.^  But,  in  no  case,  will  the  lords  permit  the 
commons,  nor  indeed  have  the  commons  ever  claimed  the  privilege, 
to  name  the  time  or  place  of  meeting.^ 

827.  When  a  message  is  sent  from  the  one  house  to  the  other 
for  a  conference,  it  is  received,  treated,  and  acted  upon,  in  the  same 
manner  as  other  messages ;  and,  in  order  to  preserve  harmony  and 
a  good  correspondence  between  the  two  houses,  it  should  be  an- 
swered, as  soon  as  the  convenience  of  the  house  will  admit^  The 
house,  of  which  the  conference  is  requested,  may  simply  agree,  and 
it  would  be  unparUamentary  to  refuse  a  conference  which  was 
demanded  on  parKamentary  grounds ;  or  it  may  disagree,  in 
which  case,  the  reasons  for  disagreeing  should  be  stated ;  "^  or,  if  it 
is  the  house  of  commons,  of  which  the  conference  is  requested,  it 
may  agree  to  the  conference,  but  disagree  as  to  the  time  or  place,'^ 
in  which  case,  the  reasons  should  also  be  stated,  and  the  lords  wiU 
thereupon,  if  they  see  fit,  appoint  some  other  time  or  place.*'  But 
it  does  not  appear  to  be  according  to  parliamentary  usage,  nor  would 
it  consist  with  convenience,  to  agree,  on  condition,^  or  with  some 
amendment  or  modification,  as  to  the  subject-matter  of  the  confer- 
ence ;  such  an  agreement  may  be  considered  as  a  refusal  of  confer- 
ence, and  treated  as  such.  Thus,  where,  in  answer  to  a  request  of 
the  commons  for  a  conference,  the  lords  informed  them  by  message, 
that  they  agreed  to  the  conference,  "  always  provided,  that  nothing 
be  offered  at  the  conference,  that  may  anyways  concern  their  lord- 
ships' judicature,"  the  commons  resolved,  "  that,  by  the  lords'  an- 
swer, there  is  no  grant  of  a  conference  upon  the  matter,  as  it  was 
desired  by  this  house,"  and  also  that  a  conference  be  desked  with 


1  Hatsell,  IV.  17, 18,  note;  Hans.  Pari.  Hist.         ^  There  are  instances  of  messages  for  a  con- 
X.  1068 ;  Comm.  Jour.  I.  832.  ference  remaining  unanswered  altogether. 

a  Comm.  .Jour.  I.  812.  »  Comm.  Jour.  I.  114. 

8  Comm.  Jour.  L  717.  '  '  Comm.  Jour.  I.  20C,  812. 

*  Hatsell,  IV.  50.  ~  »  Comm.  Jour.  I.  200,  812. 

•  Hargrave's  Preface,  etc.,  137. 


Chap.  L]  communications  by  conference.  333 

the  lords  on  the  subject  of  that  answer."  ^  "When  a  proposition  for 
a  conference  has  been  considered,  the  answer  is  to  be  returned  by  a 
message ;  if  agreed  to  at  once,  the  answer  may  be  returned  by  the 
same  messengers ;  if  disagreed  to  at  once,  either  A\holly,  or  only  as 
to  time  or  place,  the  most  regular  course  seems  to  be  for  the  house 
disagreeing  to  return  an  answer  by  messengers  of  its  own;^  if 
the  answer  is  not  resolved  upon  immediately,  it  must  be  returned 
in  that  manner,  whatever  it  may  be. 

828.  A  conference  is  conducted  usually,  and,  in  modern  times, 
exclusively,  by  members  appointed  for  the  purpose  by  each  of  the 
two  houses,  who  are  denominated  managers,  and  who  represent 
and  act  for  their  respective  houses.  Instances  occur,  in  the  reigns 
of  James  I.  and  Charles  L,  of  conferences  between  the  two  houses, 
conducted  by  all  the  members  of  both,  in  which  the  whole  house  of 
commons  attended,  either  with  the  speaker  as  a  house,  or  as  a 
committee  without  the  speaker.-^  When  a  conference  takes  place 
in  this  manner,  all  the  members  are  of  course  managers,  and  certain 
members  are  appointed  by  their  respective  houses  as  reporters  of 
the  conference.  When  a  conference  is  to  be  conducted  by  man- 
agers, it  is  an  ancient  and  understood  rule,  that  the  number  on  the 
part  of  the  commons  is  to  be  double  that  on  the  part  of  the  lords.-* 
But  it  is  not  the  modern  practice,  when  conferences  are  proposed 
or  agreed  to,  to  make  any  mention  of  this  rule,  or  of  the  number  of 
managers  on  either  side.'^  The  number  employed  is  not  always 
the  same.  On  the  part  of  the  lords,  it  does  not  appear  to  be  less 
than  eight ;  in  the  commons,  it  must,  of  course,  be  not  less  than 
sixteen  ;  and  in  point  of  fact,  it  is  frequently  greater,  on  both  sides, 
than  those  numbers  respectively. 

829.  The  managers  of  a  conference  are  appointed  in  the  same 
manner  as  the  members  of  select  committees  ;  by  members  calling 
out  indiscriminately  the  names  of  other  members,  which  are  taken 
down  by  the  clerk  as  he  hears  them  ;  or  by  all  the  names  being 
moved  together  on  a  list  by  some  member ;  or  by  the  managers  of 
a  former  conference  being  moved  together  under  that  appeUation ;  ^ 
or  by  the  names  being  suggested  by  the  speaker.  .But,  in  all  these 
cases,  if  it  is  insisted  on,  the  name  of  each  member  must  be  moved 
separately,  and  a  question  put  upon  his  being  one  of  the  managers.^ 

830.  The  managers  for  the  house  which  requests  conference  are 

»  Comm.  Jour.  IX.  346.  "  May,  254;  Hatsell,  IV.  17,  note. 

«  Comm.  Jour.  I.  166,  200,  492,  498,  818.  '  Hansard  (3),  XXXV.  1135. 

»  Comm.  Jour.  I.  576,  631,  640,  812.  '  Hatsell,  IV.  22,  note. 
*  Comm.  Jour.  I.  154. 


834  LEGISLATIVE   ASSEMBLIES.  [PaRT   V 

usually  the  members  of  the  committee,  to  whom  it  was  referred  to 
draw  up  reasons,  or  to  prepare  what  might  be  proper  to  offer  at  the 
conference,  wath  whom  others  are  usually  joined.  On  the  part  of 
the  house,  of  whom  the  conference  is  requested,  the  managers  are 
usually  selected  from  those  members  who  have  taken  an  active 
part  in  the  discussion  of  the  matter,  whatever  it  may  be,  which  has 
given  occasion  to  the  conference,  if  they  happen  to  be  present.^  In 
the  absence  of  members  who  have  participated  in  the  proceeding, 
or  where  the  matter  has  newly  arisen,  the  managers  can  only  be 
selected  in  the  same  manner,  and  upon  the  same  principles,  that 
the  members  of  select  committees  are  appointed.  If  there  is  a 
difference  of  opinion  in  the  house,  with  reference  to  the  proposition, 
which  is  the  subject  of  a  conference,  it  would  seem  to  be  improper 
to  appoint  any  one  a  manager,  who  is  against  the  proceeding.^ 

831.  The  duty  of  the  managers,  on  the  part  of  the  house  pro- 
posing the  conference,  is  confined  to  the  delivery  to  the  managers 
for  the  other,  of  the  communication,  whatever  it  may  be,  which  it  is  . 
the  purpose  of  the  communication  to  make ;  and  the  duty  of  the 
managers  for  the  other  house  is  merely  to  receive  such  communica- 
tion. They  are  not  at  liberty  to  speak,  either  on  the  one  side  to 
enforce,  or  on  the  other  to  make  objections  to,  the  communication. 
One  of  the  managers  for  the  house  proposing  the  conference,  (the 
member  first  named,^  it  is  presumed,  unless  otherwise  agreed 
among  themselves,)  first  stating  the  occasion  of  it  in  his  own 
words,4  WiQH  reads  the  communication,  and  delivers  the  paper  on 
which  it  is  written  to  one  of  the  managers  for  the  other  house,  by 
whom  it  is  received.  When  the  conference  is  over,  the  managers 
return  to  their  respective  houses,  and  one  of  them  reports  their  pro- 
ceedings.^ 

832.  At  the  time  appointed  for  the  conference,  the  course  of 
proceedings  is  somewhat  different  in  the  two  houses.     In  the  com- 

1  May,  325.  The    principle    thus    established,    though 

?  The  several  parts  to  be  assigned  among  originally  laid   down  with  reg;u-(l  to  a  free 

*,he  managers  at  a  free  conference  being  under  conference,  is  equally  applicable  in  regard  to 

consideration  in  the  house-of  commons:  others;  because,  the  managers,  who  are  ap- 

"  Mr.  Hedley  being  assigned  with  the  rest  pointed  to  conduct  the  first  and  second  con- 
fer the  point  of  assurance,  excuseth  himself,  ferences,  are  usually  appointed  for  the  free 
in  that  he  was  directly  against  the  matter  conferences,  if  any,  which  take  place  after- 
Itself,  in  opinion."  wards.     On  one  occasion,  it  appears,  that  the 

"  Conceived  for  a  rule,  that  no  man  was  to  lord  chancellor  was  one  of  the  managers  for 

be  employed  that  had  declared  himself  against  the  lords.    Comm.  Jour.  IX.  538. 

it."  3  Pari.  Reg.  LIII.  108. 

"  Hereupon  a  question  made,  whether  Mr.  <  Mr.  Onslow.    Hatsell,  IV.  28,  note. 

Hedley  were  to  be  employed :  Resolved,  not  *  May,  326. 
*o  be  employed."     Comm.  Jour.  I.  '360. 


Chap.  L]  communications  by  conference.  335 

mons,  the  speaker  informing  the  house,  if  necessary,  that  the  time 
for  holding  the  conference  has  arrived,  the  managers  are  appointed, 
their  names  are  called  over  by  the  clerk,  and,  without  any  formal 
adjournment  of  the  house,  but  only  a  tacit  suspension  of  the  busi- 
ness in  hand,  they  go  to  the  place  at  which  the  conference  is  to  be 
held,  and  their  presence  there  is  then  made  known  to  the  lords  by 
the  usher  of  the  latter  or  his  deputy.^  If  the  managers  for  the  lords 
thereupon  attend,  the  conference  takes  place.  If  the  managers  for 
the  lords  do  not  attend,  the  managers  for  the  commons  wait  as 
long  as  they  tiiink  proper,  and  then  return  to  their  house,  and  re- 
port that  the  conference  has  not  been  held,  together  with  the  reason 
of  the  failure,  if  within  their  knowledge.  Thus,  on  one  occasion, 
the  managers  for  the  commons  reported,  "  that  they  had  been  at 
the  place  appointed  for  the  conference,  and  understood  that  the 
house  was  not  then  sat ;  -  and,  on  another,  "  that  they  had  been  at 
the  place  of  conference,  and  had  there  w*aited  a  considerable  time ; 
but  that  the  lords  not  coming,  the  managers  thought  it  their  duty  to 
stay  no  longer."  ^ 

833.  In  the  lords,  when  the  time  appointed  for  the  conference 
arrives,  nothing  is  done  until  the  house  is  informed  by  the  usher  or 
his  deputy,  that  the  commons  are  in  attendance  at  the  place  of 
conference.  Managers  are  then  appointed,  —  their  names  called 
over,  —  the  house  is,  on  motion,  adjourned  during  pleasure,  —  and 
the  managers  go  to  the  conference.  While,  the  managers  are  at 
the  conference,  the  business  of  each  house  is  entirely  suspended.^ 

834.  When  the  conference  is  concluded,  the  managers  on  both 
sides  return  to  their  respective  houses,  which  are  immediately  re- 
sumed, and  the  managers  make  their  report.  The  report  is  first 
disposed  of,  either  finally  or  for  the  time,  and  then  the  business 
which  was  interrupted  by  the  conference  is  taken  up  and  proceeded 
with  at  the  point  where  it  was  interrupted.  As  the  lords  do  not 
attend  at  all,  unless  the  commons  first  attend,  there  is  no  occasion 
for  that  house  to  be  informed  that  the  conference  has  fallen  through. 
It  falls  through,  as  a  matter  of  course,  unless  the  lords  are  notified 
of  the  attendance  of  the  commons,  at  the  time  and  place  ap- 
pointed. 

835.  When  a  conference  falls  through,  by  reason  of  the  neg- 
lect of  one  of  the  houses  to  attend,  if  the  omission  is  occasioned  by 
gome  accident,  the  cauae  of  it  is  signified  to  the  other  by  a  message 

>  Pari.  Reg.  LXin.  737.  »  Coram.  Jour.  XXIII.  625. 

«  Coiniu.  Jour.  838.  *  May,  323. 


336  LEGISLATIVE   ASSEMBLIES.  [PaKT   V 

by  way  ot  apology.     Thus,  in  the  first  of  the  eases  mentioned  in 
the  preceding  paragraph,  the  lords  very  soon  afterwards  sent  a 
message  to  acquaint  the  commons  "  that  the  speaker  of  the  house 
of  lords  living  two  miles  out  of  town,  and  the  badness  of  the  roads, 
at  this  present,  was  the  only  occasion  of  their  lordships  not  coming 
to  the  conference  at  the  time  appointed."  ^     The  commons,  —  who, 
on  receiving  the  report  of  their  managers,  had  resolved,  "  that  a 
conference  be  desired  with  the  lords  upon  the  method  of  proceed- 
ing between  the  two  houses,"  and  had  appointed  a  committee  to 
consider  of  and  prepare  reasons  to  be  offered  at  the  said  conference, 
—  on  receiving  the  apology  above  recited,  waived  all  further  pro- 
ceedings with  reference  to  the  irregularity,  and  the  next  day  request- 
ed a  conference  on  the  subject-matter  of  the  original  conference.^ 
In  the  other  case  mentioned  above,  the  Jords  on  the  next  day  in- 
formed the  commons  by  message,  that  they  were  prevented  "  by 
extraordinary  business "  from  meeting  them  the  day  before,  and 
that  they  had  appointed  another  time  for  the  conference.     The 
commons  thereupon  resolved  to  agree  to  the  conference  as  thus 
appointed.'^     In  another  case,  where  the  neglect  to  attend  was  on 
the  part  of  the  commons,  they  sent  a  message  to  the  lords  to  inform 
them  that  the  failure  to  attend  was  in  consequence  of  "  extraordi- 
nary business,"  and  desired  the  lords  to  appoint  some  other  time ; 
to  which  the  lords  agreed,  and  appointed  a  time  accordingly."^     In 
some  one  of  these  modes,  proceedings  which  have  been  interrupted 
by  the  falling  through  of  a  conference  may  be  renewed. 

836.  As  has  akeady  been  observed,  the  duty  of  the  managers,  on 
the  one  side,  is  to  make,  and  on  the  other  to  receive,  the  communi- 
cation, which  is  the  subject  of  the  conference,  and,  of  both,  on 
returning  to  their  respective  houses,  to  make  a  report  of  their  pro- 
ceedings. The  report  of  the  managers  for  the  house,  at  whose 
request  the  conference  has  taken  place,  is,  in  substance,  that  they 
have  met  the  managers  for  the  other  house,  and  have  delivered  * 
them  the  communication,  with  which  they  were  charged.  The 
report  of  the  managers  for  the  other  house  is,  in  substance,  that 
they  have  met  the  managers  for  the  former,  and  that  the  purpose 
of  the  conference  was,  to  make  a  certain  communication  which  they 
have  received  and  which  they  then  proceed  to  lay  before  the  house. 
This  communication,  or  rather  the  report  of  the  managers  embrac- 
ing it,  is  then  to  be  considered  and  disposed  of  by  the  house  tc 

1  Coram.  Jour.  X.  839.  »  Comm.  Jour.  XXIIL  525,  526. 

«  Coram.  Jour.  X.  840.  *  Coram.  Jour.  XVIIL  390. 


Chap.  L]  communications  by  conference.  337 

which  it  is  sent ;  which  may  take  place  immediately,  or  be  post- 
poned to  a  future  time. 

837.  When  it  has  been  definitely  acted  upon,  if  the  purpose  of 
the  communication  is  accomplished,  —  that  is,  if  the  house  to 
which  it  is  made  at  once  agrees  with  the  other,  —  it  then  only 
remains  for  the  former  to  signify  the  result  to  the  latter,  which  is 
sometimes  done  by  a  message,  and  sometimes  at  a  second  confer- 
ence. If  the  object  of  the  communication  is  not  effected,  but  lhe 
house  to  which  it  is  made  reaffirms  the  opinion  or  act  which  is 
objected  to,  the  course  of  parliamentary  proceedings  requires,  that 
it  should  notify  the  other  of  its  disagreement,  with  the  reasons  upon 
which  it  is  founded ;  and  this  must  always  be  done,  by  means  of  a 
second  conference,  requested  by  the  house  disagreeing,  and  agreed 
upon  and  held  in  the  manner  already  described;  at  which  the 
duties  of  the  managers  for  the  two  houses  are  reversed,  thoe^e  who 
before  made  a  communication  now  receiving  one,  and  tho?e  who 
before  received  now  making  one. 

838.  The  result  of  this  second  conference,  being  considered  and 
acted  upon,  as  above  mentioned,  may  be  to  satisfy  the  house  which 
first  made  the  communication,  that  the  other  house  is  in  the  right ; 
in  which  case,  the  agreement  of  the  latter  may  be  signified  by  mes- 
sage, or  at  a  conference.  If  the  two  houses  stUl  remain  at  difference 
with  regard  to  the  matter  in  question,  the  one  which  first  moved  in 
it  may  either  allow  it  to  rest  where  it  is,  or  may  make  a  further 
attempt  to  induce  an  agreement,  on  the  part  of  the  other.  If  the 
latter  course  is  deemed  the  most  proper,  the  only  mode  of  effecting 
it  is  by  means  of  what  is  called  a  free  conference,  which  the  house 
first  requesting  a  conference  may  then  request  of  the  other  upon 
the  same  subject-matter. 

839.  A  free  conference  ^  differs  materially  from  the  ordinary  con- 
ference already  described.  In  the  fiist  place,  the  duties  of  the 
managers  at  the  latter  are  confined  to  the  making  and  receiving  a 
communication,  which  has  previously  been  agreed  upon  and  sanc- 
tioned by  the  house  at  whose  request  the  conference  is  held.  Li  a 
free  conference,  they  are  at  liberty,  and  it  is  their  duty,  to  urge  their 
own  arguments,  to  offer  and  combat  objections,  and,  in  short,  to 
attempt,  by  personal  persuasion  and  argument,  to  effect  an  agree- 
ment between  the  two  houses.- 

840.  It  is  competent  for  the  two  houses  respectively,  however, 

1  In  the  indexes  to  the  lords'  journals,  con-         '  May,  326. 
fercMces  are  called  bare  to  distinguish  them 
haa. free  conferences. 

29 


338  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

being  now  by  means  of  the  two  preceding  conferences  in  possession 
of  each  other's  views  in  regard  to  the  matter  in  coniTOversy,  to 
arrange  beforehand  the  general  course  of  proceeding,  and  to  dis- 
tribute amongst  their  respective  managers  the  several  heads  and 
topics,  which  they  are  to  present  and  insist  upon  in  their  argu- 
ments ;  which  is  usually  done  upon  the  report  of  the  managers 
themselves,  previously  appointed  a  committee  for  the  purpose ;  ^ 
or  the  managers  may  be  allowed  to  make  such  arrangement  and 
distribution  among  themselves ;  but,  in  either  case,  the  arguments 
used,  and  the  mode  of  handling  the  several  topics  agreed  upon, 
must  be  suggested  by  the  managers  themselves. 

841.  The  only  rules,  relating  to  the  manner  in  which  the  discus- 
sions at  a  free  conference  are  to  be  conducted,  seem  to  be  the  same 
by  which  a  debate  in  either  house  on  the  same  subject-matter  would 
be  conducted,  namely :  —  1.  That  no  personalities,  either  towards  the 
managers  on  the  other  side,  or  the  house  which  they  represent,  are 
to  be  indulged  in ;  and,  2.  That  no  ii-relevant  topic,  that  is,  one  not 
embraced  within  the  subject-matter  of  the  conference,  as  agreed 
upon,  is  to  be  introduced.  If  either  of  these  rules  is  infringed,  by 
the  managers  or  any  of  them,  on  the  one  side,  there  is  no  other 
remedy  but  for  the  managers  on  the  other  to  object  to  any  further 
proceeding,  —  stating  at  the  same  time  the  reason  of  their  objec- 
tion, —  and  then  to  withdraw  from  the  conference,  and  report  the 
whole  matter  to  the  house  of  which  they  are  members ;  which  can 
then  take  such  order  in  the  premises  as  it  may  think  proper. 

842.  The  following  case  will  serve  to  illustrate  the  first  of  the 
foregoing  rules.  In  the  year  1701,  a  conference  being  held  with 
reference  to  the  proceedings  against  Lord  Somers,  Lord  Haversham, 
one  of  the  managers  for  the  lords,  making  use  of  certain  expres- 
sions which  gave  offence  to  the  managers  for  the  commons,  the 
latter  withdrew  from  the  conference,  returning  to  their  house,  and 
one  of  them  reported  "what  happened  at  the  conference  in  a 
speech  of  Lord  Haversham,  upon  which  the  managers  thought  fit 
to  withdraw  from  the  conference,  to  the  end  they  might  acquaint 
the  house  therewith."  The  managers  were  thereupon  directed  to 
"  withdraw  into  the  speaker's  chamber  and  collect  the  matter  of  the 
conference,  and  what  was  said  by  the  lord  Haversham,  and  report 
the  same  to  the  house."  The  report  of  the  managers  being  made, 
the  house  thereupon  resolved,  that  the  expressions  made  use  of  by 
Lord  Haversham,  at  the  conference,  were  false  and  scandalous,  — 

1  Coram.  Jour.  I.  340,  349,  850. 


% 


Chap.  L]  communications  by  conference.  339 

h>hly  reflecting  on  the  honor  and  justice  of  the  commons,  —  and 
tending  to  a  breach  of  the  good  correspondence  between  the  b.vo 
houses."  They  also  resolved  that  Lord  Haversham  be  charged,  for 
the  words  so  spoken,  before  the  lords,  and  that  the  lords  be  desired 
to  proceed  in  justice  against  him  therefor.  These  resolutions  were 
communicated  to  the  lords,  who,  thereupon,  appointed  a  committee 
"  to  state  the  matter  of  the  free  conference,  and  to  inspect  prece- 
dents of  what  has  happened  of  a  like  nature."  In  the  mean  time, 
in  order  th.it  the  public  business  might  recf^^ye  no  interruption,  they 
proposed  a  renewal  of  the  free  conference  immediately.  But  to 
this  the  commons  would  not  agree.  They  answered,  that  they 
were  desirous  to  preserve  a  good  correspondence  with  the  lords, 
and  to  expedite  the  business  of  parliament ;  but  it  would  noi  con- 
sist with  their  honor,  to  renew  the  conference,  until  they  had 
received  reparation  for  the  indignity  offered  to  them  by  Lord 
Haversham.^ 

843.  The  rule,  as  to  relevancy,  was  the  ground  upon  which  the 
free  conference,  with  reference  to  the  matter  of  the  Aylesbury  men, 
in  March,- 1704,  was  broken  up,  and  the  proceedings  brought  to  a 
close.  The  managers  for  the  commons,  on  their  return  to  the  house, 
reported,  "that  they  had  met  the  lords  at  the  free  conference, 
which  had  lasted  very  long ;  and  that  when  the  managers  for  the 
commons  took  notice  of  some  invasions  of  the  house  of  lords,  in 
point  of  judicature,  particularly  as  to  appeals,  the  lords  broke  up 
the  conference."  The  managers  were  thereupon  directed  "  to  draw 
up  what  had  passed  at  the  conference,  and  lay  the  same  before  the 
house  with  all  convenient  speed;"  which  being  done  accordingly, 
the  report  was  made  and  entered  at  length  on  the  journal.  The 
house  thereupon  resolved,  that  their  proceedings,  in  relation  to  the 
Aylesbury  men,  were  in  maintenance  of  the  rights  and  privileges 
of  the  commons  of  England,  and  directed  the  whole  to  be 
printed.'^ 

8i4.  The  following  order,  agreed  to  by  the  house  of  commons,  in 
1580,  I  hough  it  seems  to  refer,  especially  in  the  last  clause,  to  some- 
thmof  in  the  forms  of  proceeding  at  conferences  which  is  not  now 
in  use  or  to  a  free  conference  merely,  embodies  a  principle  which 
appears  to  be  strictly  applicable  to  the  discussions,  which  take  place 
at  free  conferences  in  modern  times:  —  "It  is  ordered,  that  such 
persons  as  shall  be  appointed  by  this  house,  at  any  time,  to  have 
conference  with  the  lords,  shall  and  may  use  any  reasons  or  persua- 

1  Conim.  .lour.  XIII.  C29,  630,  631.  2  Comm.  Jour.  XIV.  566,  569,  575. 


340  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

sions  they  shall  think  good  in  their  discretions ;  so  as  it  tend  to  the 
maintenance  of  any  thing  done  or  passed  this  house,  before  such 
conference  had,  and  not  otherwise ;  but  that  any  such  person  shall 
not,  in  anywise,  yield  or  assent,  to  [at]  any  such  conferences  to 
any  new  thing  there  propounded  until  this  house  be  first  made  privy 
thereof  and  give  such  order."  ^ 

845.  A  second  important  difference  between  a  conference  and  a 
free  conference  relates  to  the  report.  The  communication,  which 
forms  the  subject  of  an  ordinary  conference,  being  previously  agreed 
to  by  the  house  making  it,  is  usually  in  a  written  form,  and  is  fur- 
nished by  the  managers  for  that  house  to  the  managers  for  the 
other,  by  whom  it  is  made  use  of  in  making  their  report ;  but  this 
paper  is  only  to  be  regarded  as  a  memorandum  of  which  the  mana- 
gers are  at  liberty  to  avail  themselves,  in  aid  of  theu"  memory,  and 
not  as  an  official  document  authenticated  by  the  house,  from  which 
it  emanates.2  Sometimes,  however,  it  happens,  that  the  manager 
making  the  communication  relies  entirely  upon  his  memory;  in 
which  case,  the  managers  for  the  other  house  must  ti'ust  to  their 
own  recollection,  aided  by  the  notes  they  may  have  takea,  if  any,'^ 
in  order  to  make  their  report.  In  the  case  of  a  free  conference,  the 
communications  which  take  place  are  exclusively  verbal,  except  as 
to  the  staieraent  of  the  votes  or  proceedings  of  the  house,  at  whose 
request  it  is  held,  which  are  usually  contained  ill  a  written  memo- 
randum, as  at  an  ordinary  conference;  and,  therefore,  they  must 
necessarily  be  drawn  up  and  reported  from  recollection,  either  alone, 
or  assisted  by  the  notes  or  memoranda  of  the  managers.  Hence 
it  happens,  in  practice,  that  the  discussions  which  take  place  at  a 
free  conferenc  e  are  not,  in  the  first  instance,  reported ;  the  mana- 
gers, on  their  return,  merely  making  a  general  statement,  that  they 
have  been  at  the  conference,  which  was  very  long,  etc.,  and  that 
they  have  left  the  bill,  etc.,  with  the  managers  for  the  other  house. 
Where  any  votes  or  proceedings  are  communicated,  they  are  of 
course  reported.  If  subsequent  proceedings  should  render  it  neces- 
sary or  desirable,  the  course  is,  for  the  house  to  direct  the  managers 
to  make  a  full  report  forthwith,  or  in  a  convenient  time,  or  by  such 

1  Comm.  Jour.  I.  123.  the  lords,")  "  delivered  all  by  word  of  mouth, 

*  Comra.  Jour.  I.  554,  555;  Grey,  III.  240;  without  the  help  of  any  paper;  and,  therefore, 

IX.  51.  I  must  crave  pardon,  if  what  I  report  be  not 

8  Mr.  Powle,  one  of  the  managers  for  the  exactly  according  to  his  words;  though  I  hope 

commons  at  a  conference,  which  was  not  a  I  shall  not  omit  any  material  passage."  Comm. 

free  conference,  began  the  report  by  saying,  Jour.  IX.  538. 

"  he  "  (the  lord  chancellor,  who  managed  "  for 


Chap.  L]  communications  by  conference.  341 

a  day.     The  report,  when  made,  is  ordered  to  be  entered  on  the 
journal.^ 

846.  At  a  free  conference,  the  discussion  commences  with  rne 
managers  on  the  part  of  the  house  at  who.-^e  request  it  is  held ;  they 
are  answered  by  the  managers  for  the  otlier  house ;  who  are  in  tiu-n 
replied  to  by  the  first ;  and  so  on  alternately  until  both  parties  have 
exhausted  their  arguments.  The  managers,  on  each  side,  unless 
the  course  of  proceeding  has  been  particularly  marked  out  for  them 
by  the  house,  arrange  among  themselves  their  several  parts,  and  the 
different  branches  of  the  subject,  which  each  of  them  is  to  maintain 
or  enforce. 

847.  According  to  the  regular  course  of  proceeding,  it  is  a  rule, 
first,  that  a  free  conference  ought  not  to  take  place  until  after  two 
conferences,  —  that  is,  for  the  making  of  one  communication  on 
each  side,  —  have  been  held,  without  bringing  the  two  houses  to  an 
agreement ;  and,  secondly,  that  if  any  further  conference  is  desired 
after  two  conferences,  it  must  be  a  free  conference.  In  1667,  the 
commons  acquiesced  in  a  third  conference,  protesting,  at  the  same 
time,  "  that,  according  to  the  usual  course  of  proceeding  between 
the  two  houses,  there  was  a  mistake  in  the  lords  demanding  a  con- 
ference,  and  that  it  should  have  been  a  free  conference."-  A  third 
rule  is,  that  after  one  free  conference  has  been  held,  no  conference 
but  a  free  one  can  afterwards  be  held,  touching  the  same  subject- 
matter;  but  as  many  free  conferences  may  be  held,  as  may  be 
found  necessary,  consistently  with  other  forms  of  proceeding,-^ 

848.  These  rules  all  relate  to  and  suppose  the  same  subject- 
matter.  But  if,  in  the  course  of  proceedings  by  the  way  of  confer- 
ence, any  new  matter,  as,  for  example,  some  question  of  privilege, 
or  of  the  order  of  proceeding,  should  arise,  either  from  the  conduct 
of  any  of  the  managers,  or  the  proceedings  of  either  house  towards 
the  other,  or  some  alteration  sho aid  take  place  in  the  matter;  in  aU 
these  cases,  a  conference  may  be  held  with  reference  to  such  new 
matter,  in  precisely  the  same  manner,  as  if  no  other  subject  were  in 
dispute  between  the  two  houses.  The  matter  thus  incidentally 
arising  may  or  may  not  be  deemed  of  sufficient  importance  to  take 
precedence  of  the  principal  subject ;  if  it  should  be,  that  matter  is 
suspended,  until  the  former  is  disposed  of,  when  the  latter  may 
again  be  taken  up,  and  proceeded  in  at  the  point  where  it  was 
broken  off.'* 

1  Comm.  Jour.  XIV.  180,  183,  566,  569,  575;         »  Hatsell,  IV.  54. 
Lords'  Jour.  XVII.  264.  *  Hatsell,  IV.  54;  Comm.  Jour.  XVIIJ.  608- 

s  Hatsell,  IV.  54.  614. 

29* 


342  LEGISLATIVE    ASSEMBLIES.  [PaRT    V. 

849.  In  the  regular  course  of  proceeding,  therefore,  there  must, 
in  ihe  first  place,  be  a  conference,  on  the  request  of  one  of  the  two 
houses,  acceded  to  by  the  other,  at  which  the  former  makes  a  com- 
munication to  the  latter ;  second,  a  conference,  on  the  request  of  the 
house  of  ^^  hom  the  first  conference  was  requested,  for  the  pm'pose 
of  giving  reasons  for  disagi-eeing  to,  or  for  the  purpose  of  otherwise 
answering,  the  communication  which  was  the  subject  of  the  first 
conference ;  third,  a  free  conference  on  the  request  of  the  house 
\\hich  first  requested  a  conference;  fourth,  a  free  conference  on  the 
request  of  the  other ;  and,  so  on,  alternate  free  conferences,  if  the 
two  houses  think  proper,  until  they  either  agree,  or  come  to  a  final 
and  peremptory  disagreement. 

850.  Az  (^very  successive  conference,  a  new  set  of  managers  is 
appointed,  usually  however  composed  of  the  same  members  who 
were  first  appointed,  with  the  addition  of  new  ones,  if  occasion 
should  require  it.  If  the  proceedings  commence  with  the  appoint- 
ment of  managers,  which  is  always  the  case  in  the  house  of  whom 
conference  is  requested,  the  managers  are  generally  afterwards 
appointed  the  committee  to  report  the  reasons,  or  prepare  the  com- 
munication to  be  presented  at  the  second  conference.  If  the  pro- 
ceedings commence  with  the  appointment  of  a  committee  to  pre- 
pare for  the  conference,  which  is  usually  the  case  in  the  house  which 
first  requests  conference,  the  members  of  the  committee  are  after- 
wards appointed  the  managers.  Sometimes  the  proceedings  com- 
mence in  the  house  which  requests  the  conference,  with  the  ap- 
pointment of  managers ;  in  which  case,  the  same  members  are 
usually  employed  afterwards  as  managers,  or  as  a  committee  to  pre- 
pare reasons,  etc. 

851.  In  reference  to  the  proceedings  of  the  two  houses,  on  the 
report  of  a  conference,  whether  free  or  not,  it  is  a  general  rule, 
which  has  aheady  been  alluded  to,  that  the  house,  at  whose  re- 
quest the  conference  was  held,  takes  no  further  steps  whatever  in 
the  matter  until  something  has  been  done  by  the  other,  upon  whom 
alone  it  rests,  to  proceed  or  not,  as  it  may  think  proper.  It  may,  if 
it  pleases,  let  the  matter  drop  where  it  is.  But  if  it  thinks  proper 
to  take  the  report  into  consideration  (which  is  the  next  step  in  the 
orderly  course  of  proceeding),  if  it  is  the  report  of  the  first  confer- 
ence, it  may  either  accede  to  the  proposition  or  request,  which  is 
the  subject  of  the  conference,  or  it  may  disagi-ee  to  it.  If  it  dis- 
agrees, its  disagreement  is  communicated  at  the  second  conference. 
Upon  the  report  of  this,  the  house  which  first  requested  the  con- 
ference may  then  proceed  or  not,  as  it  pleases,  or  may  let  the  mat- 


ClIAP.    LJ  COMMUNICATIONS   BY   CONFERENCE.  343 

ter  drop.  If  it  proceeds  with  the  report,  three  difTereni-  courses  are 
open,  namely  :  1.  To  yield  the  point  in  di.sj)ute;  2.  To  reaffirm  its 
proceedings  in  such  a  manner,  that,  ujX)n  further  conference  or  con- 
sideration of  Ihe  matter,  it  may  be  at  Hberty,  if  it  thinks  proper,  to 
yield  Ihe  point ;  3.  To  reaffirm  its  proceedings  in  such  a  manner,.as 
not  to  be  at  liberty  to  retract,  in  which  latter  case,  there  can  be  no 
agreement  between  the  two  houses  unless  the  other  should  ihink 
proper  to  yield.  In  the  first  case,  the  house  agrees  ;  in  the  second, 
it  insists;  in  the  third,  it  adheres.  The  nature  of  the  proceedings 
to  be  coiLsidered  will  indicate  which  of  these  forms  should  be 
adopted. 

852.  If  Ihe  house,  of  whom  the  conference  has  been  demanded, 
sees  fit,  upon  the  report  thereof,  to  yield  the  point  in  dispute,  or  to 
acquiesce  in  what  is  desired  of  it,  (the  particular  form  of  proceed- 
ing will  be  notieed  hereafter,)  it  is  said  to  agree  with  the  other. 
This  agreement,  which,  of  course,  terminates  the  proceedings,  may 
be  signified  by  a  message,  in  whatever  stage  it  may  happen  to 
occur. 

853.  If  the  house,  of  whom  the  conference  has  been  demanded, 
does  not  see  fit,  upon  considering  the  report  of  the  conference,  to 
agree  with  the  other,  or  to  yield  the  point  in  dispute,  it  may  either 
allow  the  matter  to  rest  where  it  is,  or  it  may  reaffirm  its  proceed- 
ings, according  to  the  stage  in  which  the  matter  then  is,  and  to  the 
state  of  its  mind  in  reference  to  it.  If  it  is  on  the  report  of  the  first 
conference,  or  the  first  free  conference,  it  is  proper  merely  to  insist ; 
in  wiiieh  case,  the  house  may,  upon  further  proceedings,  retract  and 
agree.  To  adhere  at  either  of  these  stages,  is  irregular,  or,  at  least, 
contrary  to  the  ordinary  course  of  proceedings  between  the  tv\^o 
houses ;  it  being  usual  to  have  two  free  conferences,  or  more,  be- 
fore eiiher  house  proceeds  to  adhere.^ 

854.  If  the  stage  of  the  proceedings  is  on  ihe  report  of  the  sec- 
ond, or  any  subsequent  free  conference,  the  house,  of  whom  the 
conference  has  been  demanded,  may,  if  it  does  not  see  fit  to  yield 
the  point  in  dispute,  insist  as  before,  which  it  is  still  proper  for  it  to 
do,  in  which  case,  it  may  afterwards  agree ;  or  it  may  adhere,  in 
which  case,  it  cannot  afterwards  retract  and  agi-ee.  And  as  it  is 
the  parliamentary  course,  so  it  is  no  less  agreeable  to  the  nature  of 
things,  that  there  should  be  no  adhering,  on  either  side,  until  after 
two  free  conferences,  at  least :  because,  before  that  time  neither  of 
the  two  houses  can  be  possessed  of  the  reasons  upon  which  the 

1  Hatsell,  IV.  356. 


344  legislati\t;  assemjblies.  [Part  V. 

other  proceeds  ;  nor  can  they  have  had  full  opportunity  to  reply  to 
the  arguments  of  one  another.  To  adhere  sooner,  therefore,  is  to 
exclude  all  possibility  of  oflering  expedients.^ 

855.  When  the  house,  whose  business  it  is  to  take  the  next  step 
in  the  course  of  the  proceedings,  subsequent  to  a  conference,  has 
considered  and  acted  upon  the  report  thereof,  its  proceedings  are  to 
be  communicated  to  the  other,  if  it  yields  and  agrees,  by  a  mes- 
sage ;  if  not,  at  a  conference,  which  must  be  either  a  conference,  or 
a  free  conference,  according  to  the  stage  in  which  it  takes  place. 
If  the  vote  of  the  house  is  to  insist,  then  the  other  may  agree,  insist, 
or  adhere,  according  to  the  rules  above  stated,  and  demand  a  con- 
ference, to  communicate  its  proceedings,  which,  as  it  must  be  at 
least  the  tliird  conference,  must  regularly  be  a  free  conference. 

856.  Sometimes,  instead  of  a  single  point  of  difference  between 
the  two  houses,  there  are  several  relating  to  or  growing  out  of  the 
same  subject-matter;  in  which  case,  the  tv\^o  houses  may  agree 
upon  different  points  at  different  stages  of  the  proceedings  ;  but,  so 
long  as  any  one  point  remains,  they  have  not  arrived  at  that  full 
and  perfect  agreement,  which  it  is  the  purpose  of  conferences  to 
bring  about.  Conferences  may  consequently  take  place  until  noth- 
ing remains  in  dispute,  or  until  one  or  the  other  of  the  houses  sees 
fit  to  di'op  all  further  proceedings,  or  until  both  houses  adhere  to 
their  respective  proceedings.  A  partial  agreement  is,  of  course, 
communicated  at  the  conference,  which  is  held  upon  the  points 
stiU  remaining  in  dispute. 

857.  Strangers  are  no  more  entitled  to  be  present  at  conferences, 
than  at  committees,  or  in  either  house ;  -  nor  are  any  members  en- 
titled to  be  present  but  those  who  are  appointed  to  manage  the 
conference ;  ^  and,  if  the  managers  for  the  commons,  on  going  to 
the  conference  room,  (the  lords  do  not  go  to  the  place  of  confer- 
ence until  they  are  notified  that  the  commons  are  there,)  find  stran- 
gers in  the  room,  who  are  not  entitled  to  be  present,  the  course  is, 
for  the  managers  to  return  and  make  report  of  that  fact  to  the 
house ;  and  the  other  house  being  also  informed  of  the  fact  by 
message,  measm-es  are  then  taken  by  both,  to  remove  the  obstruc- 
tion.^ 

858.  It  seems  hardly  necessary  to  observe,  that  orders  relating 
to  conferences,  as  for  example,  for  requesting  a  conference,  for  the 
appointment  of  a  committee  to  prepare  reasons,  for  the  appoint- 

1  Hatsell,  IV.  356.  *  Coram.  Jour.  XIV.  115, 116;  Lords'  Jour 

2  Comm.  Jour.  I.  545.  XVII. 
«  Comm.  Jour.  1. 156,  717, 756;  Same,  X.  20. 


Chap.  L]  coaiMUNicATiONS  by  conference.  345 

.ment  of  managers,  or  for  the  reporting  of  the  discussions  at  a  free 
conference,  may,  like  all  other  orders,  be  discharged  by  the  house , 
that,  like  other  reports,  the  report  of  the  managers  may  remain 
wit  ho  at  further  notice,  or  it  may  be  presently  considered,  or  it  may 
be  considered  on  a  day  assigned,  or  the  consideration  of  it  may  be 
fixed  for  a  day  beyond  the  session;  and  that  in  all  Ihese  cases, 
whenever  a  debate  ensues,  it  may  be  adjourned  and  resumed  or 
not  resumed,  or  adjourned  to  a  day  beyond  the  session.  So,  the 
report  of  the  committee  for  drawing  reasons  or  pre})aring  matter 
for  a  conference,  may  be  amended,^  and,  for  that  purpose,  recom- 
mitted to  the  same  or  a  different  committee.'-^ 

859.  When  the  whole  house  attends  as  a  house,  with  the  speaker, 
it  is  the  duty  of  the  speaker,  it  is  presumed,  to  report  the  confer- 
ence, in  the  same  manner,  as  when  the   house  attends  as  such  in 

■  the  lords,  or  in  a  body  presents  an  address  to  the  king ;  when  the 
whole  house  attends  as  a  committee,  without  the  speaker,^  or  when 
a  large  number  of  members  is  appointed  a  committee  to  attend  the 
conference,  certain  members  are  designated  by  name  to  be  the 
reporters,^  who  may,  either  by  direction  of  the  house,  or  otherwise, 
arrange  among  themselves  the  duty  of  taking  the  notes  and  re- 
porting,'' and  may  either  report  by  one  of  their  number,  or  may 
each  report  upon  some  particular  branch  of  the  subject.*^ 

860.  The  lords  being  adjourned  during  pleasure,  and  the  busi- 
ness of  the  commons  suspended,  without  any  formal  adjournment, 
in  order  that  the  conference  may  take  place,  it  is  incumbent  on  the 
officers  of  both  (including  the  lord  chancellor  and  speaker,  if  they 
do  not  go  to  the  conference,  either  with  their  respective  houses,  or 
as  managers),  to  remain  in  attendance,  whilst  the  managers  are  at 
the  conference,  so,  that,  on  their  return,  business  may  at  once  be 
resumed."^ 

861.  In  the  year  1667,  the  painted  chamber,  a  room  near  the 
chamber  of  the  house  of  lords,  was  fitted  up  as  a  place  of  confer- 
ence for  the  two  houses,  and  so  used,  until  after  the  fne,  in  1834, 
when  it  was  fitted  up  as  a  temporary  house  of  lords,  and  another 
room  taken  for  a  conference  room.*  The  new  palace  at  West- 
minster, in  which  the  two  houses  of  parliament  now  sit,  contains 
an  apartment  denominated  the  painted  chamber,  which  is  used  for 
the  holding  of  conferences. 

1  Comm.  Jour.  IX.  348.  »  Comm.  Jour.  I.  832. 

8  Coinni.  Joiir.  IX.  3-iS.  «  Comm.  Jour.  I.  S12,  813. 

*  Comm.  Jour.  I.  716.  t  Comm.  Jour.  I.  896. 

«  Comm.  Jour.  I.  832,  896.  »  Hatsell,  IV.  31,  and  note;  Jlay,  327,  n. 


346  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

862.  In  regard  to  the  ceremonies  to  be  observed  at  conferences, 
which  m  the  earlier  periods  of  parliamentary  history  were  thought 
of  sufficient  consequence  to  be  settled,  according  to  the  relative 
rank  and  dignity  of  the  members  of  the  two  houses,  the  following 
seems  all  that  is  necessary  to  be  stated.  When  the  time  fixed  for 
holding  a  conference  has  arrived,  the  speaker  m  the  house  of  com- 
mons, if  necessary,  calls  the  attention  of  the  house  to  the  fact, — 
other  business,  if  the  house  is  engaged  in  any,  is  suspended,  — 
managers,  if  not  previously  selected,  are  appointed,  —  then'  names 
are  called  over  by  the  clerk,  —  and  they  leave  their  places  in  the 
house,  and  repair  to  the  place  where  the  conference  is  to  be  held. 
They  enter  the  room  uncovered,  and  remain  uncovered  and  stand- 
ing, during  the  conference,  unless  it  be  some  infirm  person,  who  by 
connivance  is  allowed  to  sit,  uncovered,  in  a  corner  out  of  sight.^ 

863.  When  the  commons  are  thus  in  attendance,  the  lords  are 
immediately  informed  of  it  by  their  usher  or  his  deputy.  Business 
is  thereupon  suspended,  —  the  managers  are  appointed  and  their 
names  called  over,  —  the  house  is  adjourned  dm'ing  pleasure, — and 
the  managers  go  to  the  conference.  When  they  enter  the  room, 
they  have  their  hats  on,  until  they  come  just  within  the  bar  of  the 
place  of  conference,  when  they  take  them  off,  and  walk  uncovered 
to  the  seats  provided  for  them.  They  then  seat  themselves,  and 
remain  sitting  and  covered  during  the  conference.  The  manager 
for  the  lords,  who  receives  or  delivers  the  paper,  which  contains 
the  resolutions,  votes,  reasons,  or  other  matter,  which  is  to  be 
delivered,  stands  up  uncovered,  while  the  paper  is  being  transferred 
from  one  manager  to  the  other ;  but,  while  rearling  it,  he  sits 
covered.  When  the  conference  is  over,  the  lords  managers  rise 
from  their  seats,  take  off  their  hats,  and  walk  uncovered  from  the 
place  of  conference.  At  a  free  conference,  those  of  the  lords  who 
speak  do  so  standing  and  uncovered.'^ 

864.  In  the  earlier  periods  of  parliamentary  history,  conferences 
between  the  tv\^o  houses  were  of  frequent  occurrence ;  and,  from 
the  time  of  James  I.  to  that  of  George  I.  the  journals  contain  a 
great  number  of  precedents,  furnishing  abundant  learning  on  this 
subject.  But,  since  the  latter  period,  a  number  of  different  causes 
have  contributed  to  render  this  mode  of  proceeding  in  a  great 
degree  unnecessary.  The  forms  of  proceeding  between  the  two 
houses  have  become  fixed  and  settled ;  the  jurisdiction  of  the  lords, 
as  a  judicial  court  of  the  last  resort,  is  no  longer  regarded  with 

1  Lon]*'  Standing  Orders,  No.  37.  2  jfay,  327;  Hatsell,  IV.  28,  note. 


Chap.  Lj  communications  by  committees.  347 

jealousy,  as  conflicting  with  the  privileges  of  the  commons;  and,  in 
consequence  of  the  greater  publicity  of  proceedings  ii*  both  houses 
by  means  of  reporters  and  the  press,  all  the  arguments  and  consid- 
erations, which,  in  one  house,  have  led  to  the  adoption  of  certain 
measures,  arc  immediately  known  in  the  other,  without  coming 
through  the  formal  channel  of  a  free  conference.  There  is,  there- 
fore, at  the  present  day,  but  very  little  occasion  for  conferences, 
except  with  reference  to  the  amendments  to  bills  between  the  two 
houses ;  and  only  one  case  of  this  kind  has  given  occasion  to  a 
free  conference,  within  the  present  century;  which  occurred  in 
1836,  when  the  amendments  made  by  the  lords  to  a  bill  for  amend- 
ing the  act  for  regulating  municipal  corporations,  led  to  a  free 
conference.^ 

865.  In  this  country,  the  occasions  for  conference  are  less  likely 
to  occur  than  in  England,  except  in  reference  to  disagreeing  votes 
on  bills  and  other  similar  matters,  in  which  the  two  houses  proceed, 
at  once,  to  a  free  conference,  and  which  wall  be  described  hereafter. 
K  a  proper  occasion  should  occur-,  for  the  holding  of  a  conference, 
as  above  described,  in  any  of  our  legislative  assemblies,  no  good 
reason  can  be  perceived,  why  it  should  not  take  place.  The  same 
ceremonies  ^^"Ould  be  required,  but,  as  the  two  branches  are  equal 
in  point  of  dignity  and  rank,  it  would  not  be  the  exclusive  privi- 
lege of  either  to  appoint  the  time  and  place  for  the  conference. 
The  house  proposing  the  conference  would  also  propose  the  time 
and  place  for  holding  it,  or  they  might  be  left  to  be  agreed  upon  by 
the  managers  on  each  side. 


Section  III.     Communications  by  Committees. 

866.  The  two  houses  may  also  be  brought  into  communication, 
by  means  of  select  committees  ^  appointed  by  each  house,  with 
power  to  communicate  to  the  other,  in  reference  to  the  subject  or 
business  referred  to  them.^  In  1794,  the  commons  communicated 
to  the  lords  certain  papers  which  had  been  laid  before  them  by  the 

1  Mr.  May  remarks,  that  tliis  was  the  only  amendments  to  the  biU  for  preventins:  occa- 

instance  of  a  free  conference  since  1702;  but  sional  conformity,  t}ie  proceedings  on  Avhich 

in  this  he  appears  to  be  mistaken.     There  was  are  well  worthy  of  attention  as  regards  foiin. 

a  free  conference  on  tiie  matter  of  the  Ayles-  See  Jlay,  368. 

bury  men  in  1704 ;  another  March  20,  1717,  ^  The  subject  of  committees  is  explained  in 

(Coram,  uour.  XVIII.  769);  and  a  third,  April  the  seventh  part. 

23, 1740.     The  free  conference,  which  he  refers  ^  ^lay,  328,  329. 
to,  in   1702,  took  place  in  reference  to  the 


*» 
348  LEGISLATIVE   ASSEMBLIES.  [PaRT   V. 

king,  in  relation  to  corresponding  societies,  together  with  a  report 
thereon  of  their  committee  of  secrecy ;  ^  and  these  papers  being 
referred  in  the  house  of  lords  to  a  select  committee,  the  house  gave 
the  committee  power  to  receive  such  communications  as  might  be 
made  to  them,  by  the  committee  of  secrecy  appointed  by  the  house 
of  commons ;  -  to  which  the  commons,  on  being  informed  of  the 
order  by  message,  replied,  that  they  had  given  power  to  their  com- 
mittee of  secrecy,  to  communicate,  from  time  to  time,  with  the 
committee  of  secrecy  appointed  by  the  lords.^  Similar  proceedings 
were  adopted,  upon  the  inquiry  into  the  state  of  Ireland,  m  1801, 
which  was  conducted  by  secret  committees  of  the  commons  and 
lords  communicating  with  each  other.^ 


CHAPTER   SECOND. 

OF   COMMUNICATIONS  BETWEEN  THE  TWO   BRANCHES,   OR  EITHER 
OF   THEM  AND   THE  EXECUTIVE. 

867.  The  sovereign,  in  addition  to  his  character  of  chief  execu- 
tive magistrate,  is  also  one  branch  of  the  legislature  ;  and,  in  both 
capacities,  there  is  frequent  occasion  for  communication  between 
him  and  one  or  both  the  houses.  The  various  constitutional  forms 
in  which  these  communications  take  place,  on  the  one  side,  and  on 
the  other,  will  now  be  noticed:  —  I.  Communications  from  the 
sovereign  to  the  two  houses,  or  either  of  them ;  and,  II.  Commu- 
nications fi:om  one  or  both  of  the  houses  to  the  sovereign. 


Section  I.     Of    Communications   from   the    Sovereign   to   the 
TWO  Houses,  or  either  of  them. 

868.  The  sovereign  communicates  with  the  two  houses,  either  in 
their  presence,  which  takes  place  when  the  king,  being  present  in 
person  or  by  commissioners,  is  attended  by  the  two  houses  in  the 
house  of  lords ;  or  by  message,  which  is  either  written  or  verbal. 

1  Comm.  Jour.  XLIX.  613.  3  Comm.  Jour.  XIJX.  620. 

a  Lords'  Jour.  XL.  202.  *  Comm.  Jour.  LXVI.  287,  291. 


CUAP.    IL]  COMMUNICATIONS   WITH   THE   EXECUTIVE.  349 

These  several  forms  of  communication,  with  the  incidental  pro- 
ceedings to  which  they  give  rise,  will  now  be  considered. 


I.    Communications  by  the  Sovereign  in  Person,  or  by  Commissioners. 

869.  The  sovereign  is  always  supposed,  in  a  constitutional  sense, 
to  be  present,  in  the  high  court  of  parliament,  in  the  same  manner 
that  he  is  present  in  all  the  other  courts  of  the  realm ;  but  as  in  the 
latter  he  can  only  exercise  the  functions  of  justice,  through  and  by 
means  of  his  judges,  so  in  the  former  he  can  only  take  a  part  in 
the  proceedings  in  those  constitutional  modes,  by  which  the  exer- 
cise of  the  parliamentary  prerogatives  of  the  crown  is  rendered 
consistent  \\'y\\\  the  entire  freedom  and  independence  of  each  house 
of  parliament,  in  all  its  debates  and  proceedings.  The  king  may 
be  present,  in  person,  in  the  house  of  lords,  at  any  time ;  and  may 
witness  its  dehberations  and  proceedings,  but  he  can  only  par- 
ticipate in  them,  when  he  comes  there  for  the  purpose  of  exercising 
his  constitutional  functions,  as  the  chief  executive  magistrate,  or 
as  one  branch  of  the  legislature.  Charles  IL  and  his  immediate 
successors  were  accustomed  to  be  present  and  witness  the  debates 
in  the  house  of  lords ;  but,  since  the  accession  of  George  I.,  this 
practice,  which  might  be  abused  to  overawe  and  influence  the  pro- 
ceedings of  that  house,  has  been  discontinued ;  and,  according  to  the 
subsequent  practice,  the  king  is  never  personally  present  in  parlia- 
ment, except  on  its  opening  and  prorogation,  and  occasionally 
during  a  session  for  the  purpose  of  giving  the  royal  assent  to 
bills.i 

870.  When  the  king  meets  parliament  in  person,  for  either  of  the 
above-mentioned  purposes,  he  proceeds  in  state  to  the  house  of 
lords,  where,  being  seated  on  the  throne,  and  attended  by  his  officers 
of  state  (ail  the  lords  being  in  their  robes  and  standing  while  the 
king  is  present),  he  commands  the  gentleman  usher  of  the  black  rod, 
through  the  lord  high  chamberlain,  to  let  the  commons  know,  tiiat 
it  is  his  majesty's  pleasure  that  they  attend  him  immediately  in  the 
house  of  lords.  The  usher  of  the  black  rod  goes  at  once  to  the 
door  of  the  house  of  commons,  which  he  strikes  with  his  rod  ;  and, 
on  being  admitted  (it  is  not.  competent  for  the  house  to  refuse  him 
admittance)  he  advances  up  the  middle  of  the  house  towards  the 
table,  making  three  obeisances  to  the  chair,  and  says :  — "  Mr. 
Speaker,  the  king  commands  this  honorable  house  to  attend  liis 

1  Mnv,  831. 

30 


350  LEGISLATIVE    ASSEMBLIES.  [PaRT   V. 

majesty  immediately  in  the  house  of  peers."  He  then  ^\athdraw8, 
still  making  obeisances,  and  without  turning  his  back  upon  the 
house,  untn  he  has  reached  the  bar.  The  speaker  and  the  house 
immediately  go  up  to  the  bar  of  the  house  of  lords ;  upon  which, 
the  royal  communication,  whatever  it  may  be,  is  then  made. 

871.  When  the  king  is  not  personally  present,  the  communica- 
tion is  made  by  the  lords  commissioners  appointed  for  the  pm-pose. 
The  gentleman  usher  of  the  black  rod  is  sent,  in  the  same  manner, 
to  the  commons,  and  acquaints  the  speaker  that  the  lords  commis- 
sioners desire  the  immediate  attendance  of  that  honorable  hoVtee  in 
the  house  of  peers,  to  hear  the  commission  read ;  and,  when  the 
speaker  and  the  house  attend,  as  it  is  equally  their  duty  to  do,  at 
the  bar  of  the  lords,  the  lord  chancellor  makes  the  royal  commu- 
nication. 

872.  The  particular  ceremonies  attending  the  opening  and  pro- 
rogation of  parliament  have  been  already  described ;  those  which 
accompany  the  giving  of  the  royal  assent  to  bills  will  be  mentioned 
in  a  subsequent  part  of  the  work,  in  which  the  proceedings  in  the 
passing  of  bills  are  described. 

873.  According  to  the  established  custom,  when  the  usher  of  the 
black  rod  knocks  at  the  door  of  the  house  of  commons,  he  is  imme- 
diately let  in,  without  any  notice  being  given  by  the  sergeant-at- 
arms  to  the  house,  or  any  question  put  for  his  admission  ;  and,  as 
soon  as  he  knocks,  all  other  business,  of  what  kind  soever,  should 
immediately  cease,  the  doors  should  be  opened,  and  when  he  has 
delivered  his  message,  the  speaker  and  the  house  ought  to  go, 
without  debate  or  delay,  to  attend  the  king  in  the  house  of  lords.^ 

874.  Where  the  black  rod  brings  a  message  to  the  house,  from 
commissioners  authorized  by  the  king,  in  which  is  contained  the 
subject  of  the  commission,  which  they  are  desired  to  attend  to  hear 
read;  if  the  commons  see  any  irregularity  in  the  proceeding,  they 
do  not  immediately  comply,  but  when  the  black  rod  is  withdrawn, 
they  send  a  message  to  the  lords  stating  this  irregularity,  and  their 
reasons  for  declining  to  attend.- 

875.  In  the  case  of  a  message  from  the  house  of  lords  and  the 


D 


1  Hiitsell,  11.  374,  375.  again  with  the  black  rod  and  did  signify  to 

2  Hatpcll,  II.  377.  Mr.  Maxwell,  gentleman  tlie  house,  that  his  majesty's  assent  to  tlie  bill 
nsher  of  the  house  of  lords,  coming  into  the  of  attainder  was  now  about  to  be  given,  and 
house  witliout  knocking  at  the  door,  and  that  the  lords  did  expect  Mr.  Speaker,  and 
before  he  Avas  called,  without  the  black  rod  in  the  house  of  commons,  to  come  up."  (May 
his  hand,  exceptions  were  taken  to  both,  10,  1641.)  Kusliworth,  IV.  263. 
whereupon  he  withdrew,  and  afterwards  came 


Chap.  IL]        communications  with  the  executive.  'Sbl 

messengers  are  at  the  door,  the  speaker  cannot,  agreeably  to  the 
ancient  rule  and  unbroken  practice  of  the  house,  take  the  chair,  for 
the  puq)Ose  of  admitting  the  messeng(*rs,  till  there  are  forty  mem- 
bers present.  A  message  from  the  king,  to  attend  him  in  the  house 
of  peers,  or  from  the  lords  authorized  by  his  majesty's  commission, 
is  the  only  authority,  which  can  allow  the  speaker  to  dispense  with 
the  rule  as  to  forty  members,  and  permit  his  taking  the  chair,  though 
forty  members  are  not  present. 

876.  In  this  country,  the  only  occasion,  on  which  the  executive 
meets  the  two  branches  of  the  legislature  in  person,  —  after  taking 
the  oaths  of  office,  which  he  is  sometimes  required  to  do  in  the  pres- 
ence of  the  two  houses,  —  occurs  when  he  meets  them  for  the  pur- 
pose of  making  a  personal  communication  to  them  at  the  com- 
mencement of  each  session.  In  most  cases,  it  is  optional  with  the 
executive,  to  send  a  message  or  to  make  an  address  in  person. 
Where  the  latter  course  is  adopted,  the  time  and  place  are  agreed 
upon  beforehand.  Communications  which  take  place  afterw^ards, 
during  the  session,  from  the  executive  to  the  legislative  branches  or 
either  of  them,  are  made  by  message.  No  good  reason  is  perceived, 
why  the  executive  may  not  be  present,  as  a  private  individual,  and 
witness  the  debates  in  either  house  of  the  legislature,  at  any  time ; 
although  a  proper  sense  of  self-respect,  and  of  official  propriety 
might  restrain  him  from  doing  so. 


II.    Communications  of  the  Sovereign  hy  Message. 

Sll.  Communications  by  message  are  of  two  kinds,  written  and 
verbal.  The  former,  which  are  under  the  royal  signmanual,  are  ad- 
dressed to  either  house  singly,  or  to  both  houses  separately.  The 
message  is  brought  by  a  member  of  the  house,  being  a  minister  of 
the  crown,  or  one  of  the  royal  household.  In  the  house  of  lords,  the 
peer  who  is  charged  with  the  message  acquaints  the  house,  that  he 
has  a  message  under  the  royal  signmanual,  which  his  majesty  has 
commanded  him  to  deliver  to  then*  lordships.  The  lord  chancellor 
then  reads  the  message  at  length,  and  it  is  immediately  afterwards 
read  again  by  the  clerk.  In  the  house  of  commons,  the  member 
who  is  charged  with  the  message  appears  at  the  bar,  from  whence 
he  informs  the  speaker,  that  he  has  a  message  from  hi-^  tnnjcsty  to 
the  house,  signed  by  himself;  which  he  thereupon  takes  to  the  table 
and  presents  to  the  house.     The  message  is  delivered  to  the  speaker, 


352  LEGISLATIVE  ASSEMBLIES.  [PaRT    V. 

by  whom  it  is  read  at  length,  and  during  the  reading  the  members 
are  uncovered.^ 

878.  The  subjects  of  communications,  by  messages  under  the 
royal  signinanual,  usually  relate  to  important  pubHc  events,  which 
require  the  attention  of  parliament ;  to  the  prerogatives  or  property 
of  the  crown ;  to  provision  for  the  royal  family ;  and  to  various 
matters  in  which  the  king,  as  the  chief  executive  authority,  seeks 
for  pecuniary  aid  from  parliament.  These  messages  may  be  re- 
garded, in  short,  as  additions  to  the  royal  speech  at  the  commence- 
ment of  the  session,  submitting  for  the  consideration  of  parliament 
other  matters  which  have  since  occurred,  or  which  were  not  thought 
of  sufficient  general  interest  to  be  embraced  in  the  speech. 

879.  The  subjects  of  these  messages  under  the  signmanual  being 
analogous  to  those  which  are  introduced  into  the  king's  speech, 
which  is  delivered  to  both  houses,  it  is  a  general  rule,  that  every 
such  message  should,  if  practicable,  be  sent  to  both  houses.^  But 
it  is  otherwise,  when  the  message,  from  its  nature,  can  only  be 
communicated  to  one  house ;  as  where  a  message  was  accom- 
panied with  an  original  declaration  signed  by  the  Pretender,  to 
which  the  message  referred ;  or  where  the  message  informed  the 
house,  that  the  king  had  directed  certain  books  and  papers  to  be 
laid  before  them,  which  had  been  seized  by  his  order ;  in  both  which 
cases,  the  documents  being  original,  could  not  possibly  be  sent  to 
both  houses  at  the  same  time.''^ 

880.  The  more  proper  and  regular  course,  also,  is  to  deliver  mes- 
sages, which  are  communicated  to  both  houses  separately,  on  the 
same  day,  and  a  departure  from  this  rule  has  been  a  subject  of  com- 
plaint ;  but,  from  the  accident  of  both  houses  not  sitting  on  the 
same  day,  or  from  some  other  casual  circumstance,  it  has  frequently 
happened,  that  the  messages  have  been  delivered  on  different 
days.^ 

881.  The  practice  of  the  federal  government,  in  sending  mes- 
sages Irom  the  executive,  which  is  as  follows,  is  in  exact  accordance 
with  the  principles  laid  down  in  the  preceding  paragraphs.  Execu- 
tive messages,  when  not  in  answer  to  a  communication  from  one 
or  both  of  the  two  houses,  are  usually  sent  at  the  same  time  to 
both;''  but  if  the  subject  of  the  message  is  of  such  a  nature  as  not 
to  admit  of  being  sent  to  both,  as  where  the  document  to  be  sent 

1  May,  332.  *  Lords'  Jour.  LXVL   958:    Comm.  Jour 

a  May,  332.  LXXXIX.  576. 

»  Hatsell,  II.  367,  368,  n.  ^  Jefferson's  Manual,  sec.  XLVTI. 


Chap.  IL]        communications  with  the  executive. 


353 


with  it  consists  of  only  a  single  copy/  ^\  hich,  from  its  great  size,^ 
does  not  admit  of  being  seasonably  copied,  or,  from  its  character,'' 
does  not  admit  of  being  copied  at  all,  the  message  and  document 
accompanying  may  be  sent  to  one  only ;  or  a  part  of  the  documents 
may  be  sent  to  the  one  house  and  a  part  to  the  other.^  In  these 
cases,  the  message  commonly  contains  a  request  that  the  documents 
sent  may  be  communicated  to  the  other  house.  Sometimes,  also, 
a  message,  transmitting  original  documents,  requests  that  after 
being  seen  by  both  houses  they  may  be  returned  to  the  department 
from  whence  they  emanated.^  The  documents  accompanying  an 
executive  message  ordinarily  remain  in  the  possession  of  the  house 
to  which  they  are  sent.  It  is  by  means  of  executive  messages  that 
documents  are  laid  before  the  two  houses,  which  the  executive  is 
requested  to  transmit  to  them.^  Messages  from  the  executive  are 
usually  read,  by  customary  courtesy,'  though  the  reading  may  be 
•dispensed  with,^  before  they  are  disposed  of ;  and  they  are  recorded 
at  length  on  the  journal.  The  documents  accompanying  a  mes- 
sage stand  upon  the  same  footing  with  other  papers,  and  are  neither 
read  nor  entered  on  the  journal,  as  a  part  of  the  message  which 
they  accompany. 

882.  Messages  for  pecuniary  aid  are  also  usually  sent  to  both 
houses  of  parliament  on  account  of  the  analogy  which  they  bear  to 
the  demand  for  supplies,  which,  though  addressed  exclusively  to  the 
commons,  yet  makes  a  part  of  the  royal  speech  to  both  houses ;  but 
the  form  of  the  message  differs  so  far  as  to  acknowledge  the  pecu- 
liar right  of  the  commons  in  voting  money,  while  it  seeks  no  more 
than  the  concurrence  of  the  lords.^ 

883.  Another  form  of  communication  from  the  crown  to  either 
house  of  parliament,  is  in  the  nature  of  a  verbal  message,  dehvered, 
by  command,  by  a  minister  of  the  crown  to  the  house  of  which  he 
is  a  member.  This  communication  is  used  whenever  a  member  of 
either  house  is  arrested  for  any  crime  at  the  suit  of  the  crown  ;  as 
the  privileges  of  parliament  require  that  the  house  should  be  in- 
formed of  the  cause  for  which  their  member  is  imprisoned,  and 
detained   from   his   service   in   parliament.     Thus,  in  1780,  Lord 


»  J.  of  H.  ITT.  591.  «  J.  of  H.  VIII.  49;  Same,  VIH.  138;  Cong. 

«  J.  of  S.  III.  182.  Globe,  XVIT.  231.' 

8  J.  of  S.  20th  Cong.  2d  Sess.  155.  ^  Cong.  Globe,  XXI.  1524,  1526. 

♦  J.  of  H.  III.  591;  J.  of  S.  IH.  182;  Same,         »  Cong.  Globe,  XVIII.  4. 

aOth  Cong.  2(1  Sess.  155.  »  May,  333. 

»  J.  of  S.  IV.  237,  238;  Same,  20th  Cong. 
2cl  Sess.  155. 

30* 


354  LEGISLATIVE   ASSEMBLIES.  [PaRT  V. 

North  informed  the  house  of  commons,  that  he  was  commanded 
by  his  majesty  to  acquaint  the  house,  that  his  majesty  had  caused 
Lord  George  Gordon,  a  member  of  the  house,  to  be  apprehended, 
and  committed  for  high  treason.^  And  at  the  same  time  Lord 
North  presented,  by  command,  the  proclamation  that  had  been 
issued,  in  reference  to  the  riots  in  which  Lord  George  Gordon  had 
been  implicated.- 

884.  In  the  same  manner,  when  members  have  been  placed 
under  arrest,  in  order  to  be  tried  by  military  court-martial)  the 
secretary-at-war,  or  some  other  minister  of  the  crown,  being  a  privy- 
councillor,  informs  the  house  that  he  had  been  commanded  to 
acquaint  them  of  the  arrest  of  their  member,  and  its  cause.^  Com- 
munications of  the  latter  description  are  made  when  members  have 
been  placed  under  arrest,  to  be  tried  by  naval  court-martial ;  but 
in  these  cases  they  are  not  in  the  form  of  a  royal  message,  but  are 
communications  from  the  lord  high  admnal  or  the  lords  commis- 
sioners of  the  admiralty,  by  whom  the  warrants  are  issued  for  taking 
the  members  into  custody ;  and  copies  of  the  warrants  are,  at  the 
same  time,  laid  before  the  house.* 

885.  There  are  other  modes  of  communication  from  the  king  to 
the  parliament,  —  analogous  to  verbal  messages,  —  in  which  the 
king's  pleasure,  recommendation,  or  consent  is  signified. 

886.  The  sovereign's  pleasure  is  signified  at  the  commencement 
of  each  parliament,  by  the  lord  chancellor,  that  the  commons  should 
elect  a  speaker ;  and  when  a  vacancy  in  the  office  of  speaker  occurs 
in  the  middle  of  a  parHament,  a  communication  of  the  same  nature 
is  made  by  a  minister  in  the  house.  His  majesty's  pleasure  is  also 
signified  for  the  attendance  of  the  commons  in  the  house  of  peers  ; 
in  regard  to  the  times  at  which  he  appoints  to  be  attended  with 
addresses ;  and  concerning  matters  personally  affecting  the  interests 
of  the  royal  family.'^  At  the  end  of  a  session,  also,  the  royal  pleas- 
ure is  signified,  by  the  lord  chancellor,  that  parliament  should  be 
prorogued.  Under  this  head  may  likewise  be  included  the  appro- 
bation of  the  speaker  elect,  signified  by  the  lord  chancellor. 

887.  The  royal  recommendation  is  signified  to  the  commons  by  a 
minister  of  the  crown,  on  motions  for  receiving  petitions,  for  the 
introduction  of  bills,  or  on  the  offer  of  other  motions  involving  any 
grant  of  money  not  included  in  the  annual  estimates,  whether  such 

1  Coram.  Tour.  XXXVn.  903.  ■•Coram.  Jour.  LXII.   145;    Same,  LXIV. 

3  May,  333.  214;  Same,  LXVII.  246;  May,  333. 

«  Coram.  Jour.  LVIII.  597;  Same,  LIX.  33;  »  Coram.  Jour.  LXXXVL  460 
6ame,  LXX.  70. 


Chap.  II.]       communications  with  the  executive.  355 

grant  is  to  be  made  in  the  committee  of  supply,  or  any  other  com- 
mittee ;  or  which  would  have  the  effect  of  releasing  or  compounding 
any  sum  of  money  owing  to  the  crown.^ 

888.  The  roy:\l  consent  is  given  to  motions  for  bills,  or  amend- 
ments to  bills,  or  to  bills  in  any  of  their  stages,  which  concern  the 
royal  prerogatives,  the  hereditary  revenues,  or  personal  property  or 
interests  of  the  crown  or  duchy  of  Cornwall.^  The  mode  of  com- 
municating the  recommendation  and  consent  is  the  same;  but  the 
former  is  given  at  the  very  commencement  of  a  proceeding,  and 
must  precede  all  grants  of  money  ;  while  the  latter  may  be  given 
at  any  time  diuing  the  progress  of  a  bill,  in  which  the  consent  of 
the  crowrf  is  required.^ 

889.  Another  form  of  communication,  similar  in  principle  to  the 
last,  is  when  the  crown  "  places  its  interests  at  the  disposal  of  par- 
liament," which  is  signified  in  the  same  manner,  by  a  minister  of 
the  crown.^ 

890.  The  respect,  which  is  deemed  to  be  due  from  the  two 
houses  to  the  executive,  requires,  that  certain  of  these  communica- 
tions, from  the  sovereign  to  either  or  both  the  two  houses,  should 
be  acknowledged  in  an  appropriate  manner.  The  communications, 
which  thus  require  acknowledgment,  are  the  royal  speech  at  the 
commencement,  and  messages  received  in  the  course  of  the  ses- 
sion. 

891.  When  the  royal  speech  has  been  read,  an  address  in  answer 
to  it  is  moved  in  both  houses.  Two  members  in  each  house  are 
selected  by  the  administration  for  moving  and  seconding  the  ad- 
di-ess,  and  they  appear  in  their  places  in  court  dresses  for  that  pur- 
pose. The  address  is  an  answer,  paragraph  by  paragraph,  to  the 
royal  speech.  Amendments  may  be  made  to  any  part  of  it,  and 
when  the  question  for  an  address,  whether  amended  or  not,  has 
been  agreed  to,  a  select  committee  is  appointed  "  to  prepare "  or 
"  draw  up "  an  address.  When  the  r(>port  is  received  from  this 
committee,  amendments  may  still  be  made  to  the  address  before  it 
is  agreed  to ;  and  after  it  has  been  finally  agreed  to,  it  is  ordered  to 
be  presented  to  his  majesty.  When  the  speech  has  been  delivered 
by  the  sovereign  in  person  and  he  remains  in  town,  the  address  is 
presented  by  the  whole  house ;  but,  when  it  has  been  read  by  the 

1  Coinin.   .I.nir.    LXXV.   152,  167;    Same,         3  May,  335. 

LXXXIX.  52;  Mav,  335.  *  Comm.  Jour.  LXXXMII.  381;  Saine,XC. 

2  Comm.    Jour.  '  LXXVII.     408;      Same,     447 ;  Same,  XCI.  427 ;  May,  336. 
LXXXVI.  485,  650;    Same,  XCI.  648;   Same, 

CV.  492. 


356  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

lords  commissioners,  or  if  the  sovereign  is  in  the  country,  the  address 
of  the  upper  house  is  presented  "  by  the  lords  with  white  staves ; " ' 
and  the  address  of  the  commons  by  "  such  members  of  the  house 
as  are  of  his  majesty's  most  honorable  privy  council."  When  the 
address  is  to  be  presented  by  the  whole  house,  the  "  lords  with  white 
staves  "  in  the  one  house,  and  the  privy-councillors  in  the  other,  are 
ordered  "  humbly  to  know  his  majesty's  pleasure  when  he  wiU  be 
attended  "  with  the  address.  Each  house  meets  when  it  is  under- 
stood that  this  ceremony  wiU  take  place,  and  after  his  majesty's 
pleasure  has  been  reported,^  proceeds  separately  to  the  palace.^ 

892.  Messages  under  the  royal  signmanual  are  generally  ac- 
knowledged by  addresses  in  both  houses,  which  are  presented  from 
the  house  of  lords  by  the  "  lords  with  white  staves,"  and  from  the 
house  of  commons  by  those  of  the  privy-councillors  who  happen  to 
be  members ;  in  the  same  manner  as  addresses  in  answer  to  royal 
speeches  when  parliament  has  been  opened  by  commission. 

893.  In  the  commons,  however,  it  is  not  always  necessary  to 
reply  to  these  messages  by  address ;  as  a  prompt  provision,  made 
by  that  house,  is  itself  a  sufficient  acknowledgment  of  royal  com- 
munications for  pecuniary  aid.  The  house  of  lords  invariably  pre- 
sents an  address,  in  order  to  declare  its  willingness  to  concur  in 
the  measures  which  may  be  adopted  by  the  other  house  ;  *  but  the 
bills  consequent  upon  messages  relating  to  grants,  are  presented  by 
the  speaker  of  the  commons,  and  are  substantial  answers  to  the 
demands  of  the  crown.  The  rule,  therefore,  in  the  commons,  ap- 
pears to  be,  to  answer,  by  address,  aU  written  messages  which  relate 
to  important  public  events,'^  or  matters  connected  with  the  preroga- 
tives, interests,  or  property  of  the  crown  ;  ^  or  which  call  for  general 
legislative  measures ; ''  but  in  regard  to  messages  relating  exclu 
sively  to  pecuniary  aids  of  whatever  kind,  to  consider  them  in  a 
committee  of  the  whole  house,  on  a  future  day  when  provision  is 
made  accordingly.^ 

894.  When  the  house  is  informed,  by  command  of  the  crown, 
of  the  arrest  of  a  member  to  be  tried  by  a  military  court-martial,  it 
immediately  resolves  upon  an  address  of  thanks  to  his  majesty, 
"  for  his  tender  regard  to  the  privileges  of  this  house."  ^     And  in 

1  Of  the  royal  household.  «  Comm.    Jour.    LXXXV,     466;      Same, 

2  Lords'  Jour.  LXXIV.  10;   Comm.  Jour.      LXXXIX.  578 

XC VI.  11 ;  Same,  CL  10.  r  Comm.  Jour.  LXXXV.  214. 

»  May,  182.  8  Comm.  Jour.  LXXXVI.  488,  491    Same. 

*  Lords'  Jour.  LXIH.  891.  CV.  539,  544;  May,  337. 

»  Comm.  Jour.  LXXXU.  114.  »  Comm.  Jour.  LXX.  70 


Chap.  II.]         communications  with  the  executive. 


3o7 


aU  cases  in  which  the  arrest  of  a  member  for  a  criminal  offence  is 
communicated,  an  address  of  thanks  is  voted  in  answer.^  But  as 
the  arrest  of  a  member  to  be  tried  by  a  naval  court-martial  does 
not  proceed  immediately  from  the  crown,  and  the  communication 
is  only  made  from  the  lords  of  the  admiralty,  no  address  is  neces- 
sary in  answer  to  this  indirect  form  of  message.^ 

895.  The  matters  upon  which  the  royal  pleasure  is  usually  sig- 
nified need  no  address  in  answer,  as  immediate  compliance  is 
given  by  the  house ;  and  the  recommendation  and  consent  of  the 
crown,  as  already  explained,  are  only  signified  as  introductory  to 
proceedings  in  parliament,  or  essential  to  their  progress.^ 

896.  In  this  country,  when  a  verbal  message  is  to  be  sent  by  the 
executive  to  the  two  houses  or  either  of  them,  it  is  usually  in  an- 
swer to  a  communication  to  him,  and  is  returned  by  the  same  mes- 
sengers. On  other  occasions,  as  ministers  and  other  official  per- 
sons connected  with  the  executive  department,  are  carefuUy  ex- 
cluded by  the  American  constitutions,  from  having  seats  in  the 
legislative  assemblies,  executive  messages  are  not  sent  by  mem- 
bers, but  by  the  secretary  of  state,  or  analogous  officer,  or  some 
subordinate  officer  of  his  department,'*  or  by  a  private  secretary. 
The  messenger  commonly  employed  by  the  president  of  the  United 
States,  though  others  have  been  made  use  of,  has  been  his  private 
secretary.  It  is  a  breach  of  privilege  to  assault  the  executive,"^  or 
his  messenger,*^  whilst  going  to  or  retm-ning  from  the  delivery  of  an 
address  or  message.  It  is  not  now  the  custom  in  this  country  to 
answer  either  an  executive  address  or  message  in  a  formal  manner. 


Section  II.     Of  Communications  from  the  two  Houses,  or  either 

OF  them,  to  the  Sovereign. 

897.  Havinff  thus  described  the  forms  of  communication  from 
the  sovereign  to  the  two  houses  or  either  of  them,  together  with 
the  forms  in  which  they  are  acknowledged,  it  now  becomes  neces- 
sary to  describe  those  which  originate  with  the  two  houses  or  either 
of  them.  It  is  by  addresses  alone,  that  the  resolutions  of  parlia- 
ment, or  of  either  house,  can  be  conveyed  directly  to  the  crown. 
These  resolutions  are  sometimes  in  answer  to  royal  speeches,  or 


>  Comm.  Jour.  XXXXII.  903. 

-  M:iy,  338. 

'  M;iy,  n3S. 

♦J.  of  II.  III.  12.3. 


6  Pari.  ]lcg.  XLV. ;  Comm.  Jour.  LV.  7. 
•  J.  of  H.  20th  Cong.  1st  Sess.  5S7,  589,  764: 
J.  of  S.  20th  Cong.  1st.  Sess.  491. 


358  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

messages,  but  are  more  frequently  in  reference  to  other  matters, 
upon  which  either  house  is  desirous  of  making  known  its  opinions 
to  the  crown.^ 

898.  Addresses  are  sometimes  agreed  upon  by  both  houses,  and 
jointly  presented  to  the  crown,  but  are  more  generally  confined  to 
each  house  singly.  When  some  event  of  unusual  importance  ^ 
makes  it  desirable  to  present  a  joint  address,  the  lords  or  commons, 
as  the  case  may  be,  agree  to  a  form  of  address  ;  and  having  left  a 
blank  for  the  insertion  of  the  title  of  the  other  house,  communicate 
it  at  a  conference,  and  desire  their  concurrence.  The  blank  is  there 
filled  up,  and  a  message  is  returned,  acquainting  the  house  with  its 
concurrence,  and  that  the  blank  has  been  filled  up.  Such  addresses 
are  presented  either  by  both  houses  in  a  body,'^  or  by  two  peers  and 
four  members  of  the  house  of  commons ;  *  and  they  have  been  pre- 
sented also  by  committees  of  both  houses;'^  by  a  joint  committee 
of  lords  and  commons,'^  and  by  the  lord  chancellor  and  speaker 
of  the  house  of  commons ;  ^  but  the  lords  always  learn  his  majes- 
ty's pleasure,  and  communicate  to  the  commons,  by  message,  the 
time  at  which  he  has  appointed  to  be  attended.* 

899.  The  addresses  in  answer  to  the  royal  speech  at  the  com- 
mencement of  the  session  are  formally  prepared  by  a  committee, 
upon  whose  report  they  are  agreed  to,  after  having  been  twice  read ; 
but  at  other  times  no  formal  address  is  prepared,  and  the  resolu- 
tion for  the  address  is  alone  presented.  They  are  ordered  to  be 
presented  by  the  whole  house ;  '^  by  the  lords  \\dth  white  staves,  or 
privy-councillors ;  ^^  and,  in  some  peculiar  cases,  by  members  spe- 
cially nominated.^^ 

900.  The  subjects  upon  which  addresses  are  presented  are  too 
varied  to  admit  of  enumeration.  They  have  comprised  every  mat- 
ter of  foreign  ^^  or  domestic  policy  ;^'^  the  administration  of  justice  ;  ^* 
the  confidence  of  parliament  in  the  ministers  of  the  crown  ;  ^^  the 
expression  of  congi'atulation  or  condolence  (which  are  agreed  to 
nem.  con.  ;)^''  and,  in  short,  representations  upon  all  points  connected 
with  the  government  and  welfare  of  the  country.     But  they  ought 

1  May,  337,  338.  i"  Lord's  Jour.  XCII.  19. 

2  Comra.  Jour.  LXXXVII.  421;  Same,         "  Comm.  Jour.  X.  295;  Muy,  339. 
LXXXVm.  235.  12  Comm.  Jonr.  LXX VIII.  278 ;  Same,  LX  XXn. 

3  Comm.  Jour.  LXXXVH.  424.  118;  Same,  LXXXVIII.  471. 

*  Comm.  Jour.  LXXXV.  652.  "  Comm.  Jour.  LXXXIX.  235. 

6  Comm.  Jour.  I.  877.  "  Comm.  Jour.  LXXXV.  472. 

«  Comm.  Jour.  II.  462.  is  Comm.  Jour.  LXXXVII.  325. 

T  23d  Dec.  1708;  Comm.  Jour.  XVL  64.  .         i»  Comm.  Jour,  LXXXV.   591;  Same,  XCII 

8  May,  338.  493;  Same,  CV.  508. 

a  Comm.  Jour.  XCII.  492. 


Chap.  II.]         communications  with  the  executive.  359 

not  to  be  presented  in  relation  to  any  bill  depending  in  either  house 
of  parliament.^ 

901.  When  a  joint  address  is  to  be  presented  by  both  houses, 
the  lord  chancellor  and  the  house  of  lords,  and  the  speaker  and  the 
house  of  commons,  proceed  in  state  to  the  palace  at  the  time  ap- 
pointed. On  reaching  the  palace,  the  two  houses  assemble  in  a 
chamber  adjoining  the  throne  room,  and  when  the  king  is  prepared 
to  receive  them,  the  doors  are  thrown  open,  and  Ihe  lord  chancellor 
and  the  speaker  advance  side  by  side,  followed  by  the  members  of 
the  two  houses,  and  are  conducted  towards  the  throne  by  the  lord 
chamberlain.  The  lord  chancellor  reads  the  address,  to  which  the 
king  returns  an  answer,  and  both  houses  retire  from  the  royal  pres- 
ence.- 

902.  When  addresses  are  presented  separately,  by  either  house, 
the  forms  observed  are  similar  to  those  described,  except  that  ad- 
dresses of  the  commons  are  then  read  by  the  speaker.  Each 
house  proceeds  by  its  accustomed  route  to  the  palace,  and  is  ad- 
mitted with  similar  ceremonies.  In  presenting  the  address,  the 
mover  and  seconder  are  always  on  the  left  hand  of  the  speaker.'^ 

903.  It  is  customary  for  all  the  lords,  without  exception,  who 
attend  his  majesty,  to  be  in  full  dress;  but  several  members  of  the 
commons  always  assert  their  privilege  of  freedom  of  access  to  the 
throne,  by  accompanying  the  speaker  in  their  ordinary  attire.^ 

904.  When  addresses  have  been  presented  by  the  whole  house, 
the  lord  chancellor  in  one  house,  and  the  speaker  in  the  other,  re- 
ports the  answer  of  his  majesty ;  but  when  they  have  been  pre- 
sented by  privy-councillors  only,  the  answer  is  reported  by  one  of 
those  who  have  had  the  honor  of  attending  his  majesty,  or  by  one 
of  the  royal  household."^ 

905.  Another  mode  of  communication  with  the  crown,  less  direct 
and  formal  than  an  address,  has  been  occasionally  adopted ;  when 
resolutions  of  the  house,*'  and  resolutions  and  evidence  taken  before 
a  committee,''  have  been  ordered  to  be  laid  before  the  sovereign. 
In  such  cases  the  resolutions  have  been  presented  in  the  same  man- 
ner as  addresses,  and  answers  have  sometimes  been  retm-ned.^ 

»  Lords' Jour.  XIT.  72,  81,  88;  Comm.  Jour.  XXXIX.  884;  S;ime,   XL.  1157;    Same,  LX. 

VIII.  670;  Giey,  L5;  May,  339.  206;    Same,   LXVIL  402;    Same,  LXXVllL 

!  May,  339.   '                   "  316. 

'  May,  340.  '  Comm.  .lour.  XC.  534. 

♦  Tliey  are  not  permitted  to  enter  the  royal  *  May,   341.      Tlie   paracrraphs    composing 
Dresence  with  sticks  or  umbrellas;  May,  340.  this   and  the  preceding  section  are,  for    the 

*  May,  340.  most  part,  taken   almost  literally  from  this 

•  Comm.    Jour.     XXXVII.    330;      Same,  author. 


360  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

906.  When  the  king's  answer  to  an  address  has  been  reported,  it 
is  the  usual  practice  for  the  house  to  come  to  a  resolution  express- 
ing its  thanks  therefor. 

907.  In  this  country,  though  the  formal  address  might  properly 
be  employed,  it  is  not  now  commonly  in  use,  in  making  communi- 
cations from  one  or  both  branches  of  the  legislature  to  the  execu- 
tive ;  but  they  are  made  by  means  of  resolutions  authenticated  and 
transmitted  in  the  usual  manner.  Formerly,  it  was  the  practice  in 
the  congress  of  the  United  States  to  transmit  resolutions  to  the 
executive  by  members,  but  this  practice  appears,  for  many  years, 
to  have  been  discontinued. 


CHAPTER   THIRD. 

OF  ACCOUNTS,  PAPERS,  RETURNS,  PRESENTED  IN  PURSUANCE  OF 
ORDERS,  OR  m  OBEDIENCE  TO  ACTS  OF  PARLIAMENT. 

908.  One  of  the  powers  incidental  to  parliament  is  that  of  ob- 
taining aU  information  which  may  be  necessary  to  enable  it  to  act 
efficiently,  thoroughly,  and  properly,  in  the  exercise  of  its  various 
functions.^  Each  of  the  houses,  therefore,  as  it  acts  separately  and 
independently  of  the  other,  is  invested  with  this  authority,  and  may 
consequently  resort  both  to  other  official  persons  and  bodies  for 
information  connected  with  their  respective  offices  or  functions,^ 
and  also  to  private  individuals,  for  all  mformation  in  their  posses- 
sion relative  to  subjects  or  matters  pending  in  parliament.  Some- 
times, also,  acts  of  parliament  provide  that  certain  official  persons^ 
shall  make  periodical  or  special  returns,  to  parliament,  or  that  com- 
missioners appointed  for  some  special  purpose  shall  present  the 
result  of  then:  inquiries  to  parliament.  The  proceedings  which  take 
place  with  a  view  to  obtain,  or  with  reference  to  the  receiving,  of 
information  of  this  official  character,  will  form  the  subject  of  the 
present  chapter.  Proceedings  with  reference  to  the  information 
derivable  from  private  sources  wiU  be  treated  of  in  the  chapter 
followdng,  relating  to  witnesses. 

»  By  Sir  William  Yonge,  Comm.  Deb.  Vm.        2  See  also  Cong.  Globe,  XI.  712. 
15. 


Chap.  III.]  accounts,  papers,  returns.  361 

909.  The  authority  to  obtain  information  of  the  official  character 
above  mentioned  is  invested  in  each  house  separately,  and  may  be 
exercised  either  directly  by  an  order  of  the  house,  or  indirectly  by 
means  of  an  address  to  the  crown.  The  ordinary  accounts  relating 
to  trade,  finance,  and  general  or  local  matters,  are  ordered  directly, 
and  are  returned,  in  obedience  to  the  order,  to  the  house  from 
whence  it  issues ;  but  returns  of  matters  connected  with  the  exer- 
cise of  the  royal  prerogatives,  are  only  to  be  obtained  by  means  of 
addresses  to  the  crown.^ 

910.  The  distinction  between  these  two  classes  of  returns  is  im- 
portant ;  as,  on  the  one  hand,  it  is  considered  irregular  to  order 
directly  that  which  should  be  sought  for  by  address ;  and,  on  the 
other,  it  is  regarded  as  a  compromise  of  the  authority  of  parliament, 
to  resort  to  the  crown  for  information,  which  it  can  obtain  by  its 
own  order.  It  is  not  always  easy,  in  practice,  to  make  the  neces- 
sary discrimination ;  but,  as  a  general  rule,  it  may  be  stated,  that 
all  public  departments  connected  with  the  collection  or  manage- 
ment of  the  revenue,  or  which  are  under  the  control  of  the  treasury, 
may  be  reached  by  a  direct  order  from  either  house  of  parliament ; 
but  that  public  officers  and  departments  subject  to  the  secretaries 
of  state  are  only  to  receive  their  orders  from  the  crown.  Thus, 
returns  from  the  customs,  the  excise,  the  stamps,  and  taxes,  the 
post-office,  the  board  of  ti'ade,  or  the  treasury,  are  obtained  by 
orders.  These  returns  include  every  account  that  can  be  rendered 
of  the  revenue,  and  expenditure  of  the  country ;  of  commerce  and 
navigation  ;  of  salaries  and  pensions ;  of  general  statistics  ;  and  of 
facts  connected  with  the  administration  of  all  the  revenue  depart- 
ments. Addresses  must  be  presented  for  treaties  with  foreign 
powers,  for  despatches  to  and  from  the  governors  of  colonies,  and 
for  returns  connected  with  the  civil  government,  and  the  administra- 
tion of  justice.^ 

911.  Motions  for  addresses,  or  for  orders,  with  a  view  to  obtain 
papers  or  returns,  are  subject  to  debate  and  amendment,  according 
to  the  ordinary  course  of  proceedings  in  parliament.  It  is  also 
necessary,  that  in  the  house  of  commons  they  should  be  preceded 
by  notices,'^  in  reference  to  which  the  following  rules  are  laid  down 
by  Mr.  Speaker  Abbott :  first,  any  member  may  move  for  any  of 
the  returns,  or  public  accounts,  usually  returned  to  parliament  every 


1  May,  393.  sidered  in  the  first  division  of  the  sixth  part. 

*  May,  394.  In  this  country  nothing  of  this  kind  is  neces- 

•  The  subject  of  notices  of  motions  is  con-  sary,  unless  required  by  some  speciiil  rule. 

31 


362  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

session,  without  giving  any  notice ;  second,  any  of  his  majesty's 
servants  in  the  house  of  commons  may  move  for  any  returns  they 
choose,  at  the  same  time  stating  them  to  be  for  the  us^e  and  informa- 
tion of  the  house,  without  any  previous  notice;  third,  any  gentle- 
man may  move  for  any  official  document,  without  notice,  if  he  at 
the  same  time  states  that  he  has  communicated  his  intention  to 
some  one  or  more  of  the  persons,  in  whose  department  such  docu- 
ment is  deposited,  and  that  there  is  no  likelihood  of  objection  to 
the  motion ;  in  all  other  cases,  no  motion  for  any  such  document 
can  be  entertained  by  the  house,  without  previous  notice.^ 

912.  Addresses  for  papers  or  returns  pray  the  sovereign  to  be  gra- 
ciously pleased  to  give  directions  to  the  proper  officers,  that  the 
documents  desired  may  be  laid  before  the  house  ;  and  are  ordinarily 
ordered  to  be  presented  to  the  sovereign  by  such  members  of  the 
house  as  are  of  the  privy  council.  When  presented,  an  answer  is 
returned,  which  is  afterwards  reported  to  the  house  by  one  of  the 
members  by  whom  the  address  has  been  presented.  The  answer, 
if  favorable,  is,  that  his  majesty  had  commanded  him  to  acquaint 
the  house,  that  he  will  give  directions  accordingly. 

913.  If  the  papers  or  information  sought  to  be  attained  by  means 
of  an  address  should  be  such,  as,  either  in  whole  or  in  part,  in  the 
judgment  of  the  crown,  it  would  not  be  proper  to  make  public,  the 
answer  is,  that  the  subject  to  which  the  papers  or  some  of  them 
relate,  is  one  which  requires  the  greatest  secrecy,  and  that  the 
information  desired  cannot  be  given  without  manifest  prejudice  to 
the  public;-  or,  that  the  subject  of  the  address  being  of  the  greatest 
importance,  his  majesty  wiU  take  it  into  his  most  serious  considera- 
tion, in  order  to  see  how  far  the  same  can  be  complied  with,  with- 
out prejudice  to  the  public.^  If  the  house  should  be  dissatisfied 
with  such  an  answer,  which,  without  strong  reasons,  would  not  be 
likely  to  be  the  case,^  it  is  competent  for  it  to  present  a  further 
address,  representing  its  right  to  have  the  information  in  question, 
and  earnestly  beseeching  his  majesty  to  order  it  to  be  laid  before 
them.^ 

914.  When  papers  are  ordered  directly,  the  order  is  signed  by  the 
clerk  of  the  house,  and  sent  at  once  to  the  persons  by  whom  it  is  to 
be  executed ;  and,  it  seems,  that  persons,  who  are  thus  subject  to 


1  Han?.  (1)  VI.  521,  522.     See  also  Reg.  of  «  Comm.  Jonr.  XXIV.  57. 

Deb.  X.  Part  1. 12,  13.  *  Comm.  Deb.  VIIL  17. 

«  Comm.  Jour.  XX.  749;    Same,  XXL  70,  ^  Comm.  Jour.  XX.  749. 
293;  Same,  XXIV.  56;  Comm.  Deb.  VIIL  17. 


Chap,  III.] 


ACCOUNTS,   PAPERS,  RETURNS. 


363 


the  authority  of  the  house  have  no  discretion  to  determine  that  the 
information  sought  for  ought  not  to  be  made  public.^ 

915.  If  an  address  sliould  hapj)en  to  be  presented  for  papers, 
which  are  within  the  direct  order  of  the  house,  it  is  the  usual  course, 
provided  no  answer  to  it  has  been  reported,  to  discliarge  the  order 
for  the  address,  and  to  order  the  papers  to  be  laid  before  the  house  ;2 
and  so  when  a  return  has  been  ordered,  for  which  an  address 
ought  to  have  been  moved,  the  order  is  discharged,  and  an  address 
presented  in  its  stead.^ 

916.  When  an  address  for  papers  has  received  a  favorable 
answer,  namely,  that  the  crown  will  give  directions  to  the  proper 
officers  to  prepare  and  lay  them  before  the  house,  the  parties  who 
are  to  make  them  are  then  within  the  immediate  reach  of  an  order 
of  the  house,'  and  consequently  stand  upon  the  same  footing  with 
parties  originally  within  the  direction  of  the  house.  If  any  parties, 
thus  under  obligations  to  the  house  to  make  the  required  returns, 
whether  originally,  or  upon  the  king's  answer  to  an  address,  neglect 
to  make  them  within  a  reasonable  time,  they  may  be  ordered  to 
make  them  forthwith ;  and  if  after  such  order,  they  continue  to  with- 
hold them,  they  may  be  ordered  to  attend  the  house,  and  may  be 
censirred  or  punished,  according  to  the  circumstances  of  the  case.'^ 

917.  The  etlect  of  a  prorogation  being  to  put  an  end  to  every 
proceeding  pending  in  parliament,  and  to  vacate  all  orders  not 
fully  executed,  there  is  no  doubt,  that  an  order  for  returns  or  papers, 
whether  by  way  of  address,  or  by  direct  order,  ceases  to  be  obliga- 
tory upon  a  prorogation ;  and,  it  is  usual,  therefore,  when  a  proro- 
gation takes  place  before  a  return  is  presented  in  pursuance  of  the 
directions  of  the  king  or  of  the  order  of  the  house,  (if  the  papers 
are  then  wanted,)  to  renew  the  order  in  the  ensuing  session,  as  if 
no  order  had  been  previously  given.  Returns,  however,  are  fre- 
quently made,  in  pursuance  of  addresses  presented  at  a  previous 
session  without  any  renewal  of  the  address.^  Orders  are  also 
occasionally  made,  which  assume  that  an  order  has  force  from  one 
session  to  another ;  as,  for  example,  returns  have  been  ordered  "  to 
be  prepared,  to  be  laid  before  the  house  in  the  next  session ; "  "> 
orders  of  a  former  session  have  been  read,  for  the  information  of  the 
house,  and  the  papers  therein  mentioned  ordered  to  be  prepared  and 
produced;^  and,  on  one  occasion,  the  order  for  an  address  made 


1  Comm.  Deb.  VIII.  17. 

2  Comm.  Jour.  XCII.  580. 
»  Comm.  Jour.  XCII.  365. 

*  Comm.  Jour.  XC.  413,  650. 
»  May,  105. 


«  Comm.  Jour.  XCVIII.  428. 
1  Comm.  Jour.  LXX VIII.  472 ;  Same,  LXXX. 
631. 
8  Comm.  Jour.  LXXVUI.  72. 


364  LEGISLATIVE  ASSEMBLIES.  [PaRT   V 

by  a  former  parliament  was  read,  and  the  house  being  informed 
that  certain  persons  had  not  made  the  return,  they  were  ordered  to 
make  it  forthwith.^ 

918.  Besides  the  modes  above  described,  in  which  the  two 
houses  obtain  official  information,  by  means  of  orders  and  addresses, 
which  emanate  from  themselves,  there  are  two  other  modes  by 
which  documentary  information  of  the  same  general  character  is 
placed  in  the  possession  of  one  or  both  houses,  for  their  considera- 
tion, namely,  by  command  of  the  king,  and  in  compliance  with  acts 
of  parliament.^ 

919.  The  ordinary  mode  in  which  papers  and  documents  are 
presented  to  the  house,  either  in  pursuance  of  its  direct  order,  or 
of  its  address  to  the  king,  or  in  compliance  with  acts  of  parliament, 
is,  for  the  officer  or  person  who  is  to  present  them,  if  not  a  member, 
to  attend  at  the  door  of  the  house,  and  on  the  house  being  there- 
upon informed  that  he  is  in  attendance,  he  is  called  in,  and,  at  the 
bar,  presents  to  the  house  the  papers  with  which  he  is  charged.  If 
a  member,  he  presents  them  in  the  ordinary  manner,  in  which 
papers  are  presented  to  the  house.  Sometimes,  however,  under 
peculiar  circumstances,  papers  are  transmitted  to  the  speaker,  and 
by  him  presented  to  the  house.  Sometimes,  also,  returns  are 
directed  to  be  made  to  the  clerk,  in  which  case,  they  are  presented 
by  him  to  the  house. 

920.  When  a  motion  is  made  for  the  production  of  papers,  in 
either  of  the  modes  above  mentioned,  the  papers  sought  to  be 
obtained  should  be  particularly  described ;  ^  and,  if  the  propriety 
of  the  motion  is  manifest,  or  if  no  objection  is  made,  it  is  the  con- 
stant usage  for  the  motion  to  be  acceded  to  as  a  matter  of  course, 
without  any  reason  being  given ;  but,  if  the  ground  of  the  motion 
is  not  clear,  or  if  objection  is  made,  it  is  then  incumbent  upon  the 
mover  to  state  the  reasons  upon  which  his  motion  is  founded  in 
order  that  the  house  may  judge  of  the  necessity,  importance,  and 
expediency  of  calling  for  the  papers  which  are  the  subject  of  it.* 
In  order  to  establish  a  parliamentary  ground  for  ordering  the  pro- 
duction of  papers,  several  things  appear  to  be  essential,  which  are 
enumerated  in  the  following  paragraphs. 

921.  I.  It  seems,  that  the  person  or  body  thus  subject  to  the 
order  of  the  house,  must  possess  a  public  official  character,  known 
as  such  in  law ;  as,  for  example,  where  it  was  proposed  to  move  for 

1  Coram.  Jour.  XC.  413.  3  Pail.  Reg.  XI.  128. 

«  May,  395.  *  rail.  Keg.  XI.  133,  133;  Cuv.  Deb.  IL  237 


CUAP.  III.] 


ACCOUNTS,    PAPERS,   RETURNS. 


36e5 


copies  of  all  communications  made  to  the  chairman  of  the  commit- 
tee at   Lloyd's  for  the  relief  of  wounded    seamen,   Mr.   Speaker 
Abbott  observed,  "  that  the  society  were  not  known  to  that  house, 
^and,  therefore,  could  not  form  part  of  a  motion  from  the  chair."  ^ 

922.  II.  The  paper,  or  document,  a  copy  of  wliich  it  is  proposed 
to  order,  must  be  official  in  its  character,  that  is,  an  office  docu- 
ment or  paper,-  and  not  a  mere  private  letter  or  othf-r  written 
document.  Where  a  motion  was  made  for  the  production  of  a 
copy  of  an  opinion  and  advice,  given  by  counsel  in  a  case  of  toll, 
in  which  the  corporation  of  Kilkenny  was  interested,  the  original 
of  which  was  in  the  possession  of  the  present  mayor  and  aldermen 
of  that  city  ;  and  objection  was  made,  that  the  document  required 
was  "  the  opinion  confidentially  given  by  a  counsel  to  his  clients," 
and  that  to  call  for  the  public  production  of  such  a  document  "  was 
as  unprecedented  as  it  would  be  of  dangerous  example,"  the  motion 
was  rejected.'^  So,  where  certain  papers  relative  to  Westminster 
Abbey  were  moved  for,  the  motion  was  objected  to  and  negatived 
on  the  ground,  among  others,  "  that  it  was  for  the  production  of 
papers,  which  were,  in  fact,  the  titles  of  the  dean  and  chapter  to 
certain  houses  and  lands  they  possessed,  and  that  it  would  be  a 
dangerous  precedent  to  establish,  to  grant  an  application  to  know 
the  titles  of  landlords  to  then-  property."  ^  • 

923.  III.  In  the  third  place,  it  is  essential,  that  a  motion  for  the 
production  of  papers  should  rest  on  a  parliamentary  ground  :  — 
1.  They  must  relate  to  a  subject  or  matter  within  the  legitimate 
powers  and  appropriate  functions  of  parliament.  Where  the  pro- 
duction of  papers  was  objected  to  on  the  ground,  that  the  subject 
to  which  th(>y  related  was  one  which  belonged  to  the  jurisdiction 
of  the  ordinary  tribunals,  and  with  which  parliament  had  no 
authority  to  interfere,  and  that  the  only  use  which  could  be  made 
of  the  documents  would  be  as  evidence  against  the  claims  of  the 
party  called  upon  to  produce  them,  the  motion  was  refused;^  so, 
it  is  no  proper  ground  for  the  production  of  papers,  that  they  will 
either  prove  or  disprove  an  assertion  made  by  a  member,  on  some 
former  occasion;^  or  that  they  will  enable  the  mover  to  proceed 
individually  upon  a  charge  against  a  party,  whom  he  desires  to 
bring  before  some  other  body  or  tribunal."  2.  The  matter,  to 
which  the  papers  relate,  must  either  be  already  pending,  or  about 


>  Hans.  (1),  XI.  271. 

»  Pari.  Reg.  XI.  128. 

»  Haiis.  (3),  LXXIV.  865. 

«  Hans.  (2),  XV.  194,  195, 199. 


6  Han?.  (2),  XV.  194,  195,  199. 
«  Hans.  (1),  XXII.  120. 
'  Hans.  (3),  XVI.  194,  196. 


31 


366  LEGISLATIVE   ASSEMBLIES.  [PaRT    Y. 

to  be  introduced.  If  such  matter  is  already  pending,  the  propriety 
of  the  motion  for  papers  will  be  apparent,  or  otherwise,  from  the 
terms  in  which  the  motion  is  expressed ;  if  not  pending,  then  it  is 
incumbent  upon  the  member  who  moves  for  papers,  to  declare  that 
he  intends  to  found  some  motion,  and  what,  upon  them  when  pro- 
duced,^ or  to  explain  in  what  manner  their  production  will  throw 
light  upon  any  matter  hereafter  to  be  moved  or  pending  in  the 
house.-  Thus,  where  a  motion  was  made  in  the  house  of  lords,  for 
the  production  of  certain  reports,  which  had  bee  A  made  to  Ihe  privy 
council,  the  mover  explained  the  ground  of  his  motion  to  be,  to  lay 
the  foundation  of  a  measure,  which  it  was  the  intention  of  the 
government  immediately  to  introduce ;  that  "  he  was  aware,  that 
such  an  act  could  not  originate  in  that  house,  but  it  would  be 
immediately  brought  into  the  other  house,  and  it  was  probable  their 
lords^hips  would  be  speedily  called  upon  to  give  it  their  sanction."  ^ 
8.  The  papers  must  be  so  necessary  and  pertinent  to  the  matter  to 
which  they  relate,  that  it  cannot  otherwise  be  fully  and  clearly 
understood.'^ 

924.  IV.  The  information  or  document  moved  for,  if  not  in  the 
possession,  must,  at  least,  be  within  the  power,  of  the  officer  who  is 
called  upon,  to  obtain  it.  Thus,  an  account  being  moved  for  of 
the  places  of  profit  and-  emolument,  and  of  the  pensions  enjoyed 
under  the  crown  in  Ireland,  by  the  representatives  in  parliament  of 
that  part  of  the  united  kingdom  ;  it  was  objected  that  there  was  no 
officer  of  the  executive  government  who  could  present  the  account 
required,  as  none  had  any  official  knowledge  of  such  pensioners  and 
placemen  as  were  members  of  that  house ;  the  speaker,  Sir  John 
IMitford,  observed,  "  that  the  motion  before  the  house  could  not 
be  complied  with ;  no  person  could  give  information  who  were 
members  of  that  house,  but  the  clerk  of  the  crown  in  Ireland ;  and 
he  was  not  bound  to  certify  to  any  person  who  should  call  on  him 
who  those  members  were ; "  and,  thereupon,  the  mover  obtained 
leave  to  withdraw  his  motion,  in  order  to  amend  it,  so  as  to  provide 
for  the  appointment  of  a  committee  to  inquire.^ 

925.  V.  The  paper  moved  for,  though  in  other  respects  proper, 
ought  to  be  calculated  to  give  important  and  useful  information  to 
the  house.  It  would  seem,  therefore,  to  be  irregular  1o  call  for 
papers,  which  had  been  already  pubHshed,  and  were  or  might  be  in 

1  Pari.  Reg.  XVI.  509.  *  By  Sir  Wm.  Yonge,  Coram.  Deb.  VIII.  16 

2  Hans.  (3),  X.  248,  249.  Cav.  Deb.  IL  237. 

«  Hans.  (3),  X.  248,  249.  '  Pari.  Reg.  LIX.  247,  249. 


CUAP.   III.]  ACCOUNTS,   PAPERS,   RETURNS.  367 

everybody's  hands  ;  unless  it  were  considered  necessary  to  authen- 
ticate them,  or  to  bring  the  subject  of  them  before  the  house  in  a 
more  solemn  manner,  in  which  case,  they  may  be  ordered  from  the 
proper  office.^  Where  it  was  proposed  to  proceed,  in  the  house  of 
lords,  to  consider  a  printed  paper,  in  the  form  of  a  proclamation  or 
manifesto  said  to  have  been  published  by  his  majesty's  commis- 
sioners in  America,  and  objection  was  made,  that  the  paper  was 
not  authenticated,  it  was  thought  proper  to  addi'ess  the  king  for 
copies  of  all  papers  pubhshed  by  these  commissioners ;  -  and  so 
where  papers  already  in  a  printed  form,  and  which  had  been  pub- 
lished and  circulated,  were  moved  for,  and  it  was  objected,  "  as  a 
very  novel  mode  of  parliamentary  proceeding,  to  call  upon  the 
admiralty  board,  or  any  other  board  or  office,  to  produce  what  was 
either  notoriously  known,  or  might  with  facility  be  procured  in 
another  manner,"  yet  as  the  documents  moved  for  were  of  an  offi- 
cial character,  it  was  deemed  proper  to  order  them  to  be  produced 
in  the  usual  manner.^  It  would  seem  to  be  irregular,  also,  to  move 
for  papers,  which  though  pertinent  contain  no  information  of  any 
importance.  Thus,  where  a  motion  was  made  for  the  production 
of  certain  letters,  and  it  was  objected,  that,  if  produced,  "  they 
would  be  found  to  contain  nothing  but  a  simple  resignation  on  the 
part  of  the  dulce  of  Cambridge,  and  a  formal  acceptance  on  the 
part  of  the  commander-in-chief,"  and  the  mover  thereupon  explain- 
ed, "  that  he  did  not  move  for  the  papers  from  any  idea  that  they 
contained  any  thing  of  importance  but  merely  for  the  purpose  of 
grounding  a  resolution  upon  them,"  —  the  motion  was  refused.^ 

926.  When  papers  or  accounts  have  been  ordered,  it  is  the  duty 
of  the  persons  who  are  to  produce  them  to  lay  them  before  the 
house  immediately  or  within  a  reasonable  time,  in  as  perfect  a  state 
as  they  can  be  made  up ;  if  presented  in  an  imperfect  form  they 
should  be  accompanied  with  reasons  showing  why  the  order  could 
not  be  more  fully  complied  with  ;  the  house  wiU  then  judge  whether 
the  reasons  are  satisfactory,  and  will  take  measures  accordingly.-^ 

927.  The  principles  relating  to  this  subject,  drawn  from  the  prac- 
tice of  parliament,  and  developed  in  the  preceding  paragraphs,  are, 
doubtless,  equally  applicable  here,  but  it  would  be  obviously  im- 
possible, to  set  forth,  in  detail,  all  the  occasions  on  which,  and  the 
public  officers  on  whom,  requisitions  for  information  may  be  made 

1  Pari.  R.-.  XI.  49,  128,  «  Hansard  (1),  IX.  171. 

»  Pari.  Reg.  XI.  60.  «  Pari.  Reg.  IV.  37. 

•  Pari.  Reg.  XI.  127,  128, 129. 


368  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

in  this  country.  The  practice,  in  the  congress  of  the  United  States, 
iji  this  respect,  wdll  probably  give  an  adequate  idea  of  what  takes 
place  in  the  several  States  with  regard  to  the  ordering  of  papers. 

928.  When  information  is  wanted  by  either  house,  respecting 
any  matter  which  is  within  the  appropriate  functions,  or  known  to 
be  in  the  possession  of  any  department,  or  public  officer,  the  course 
is  to  pass  a  resolution,  directing  the  head  of  that  department  or 
officer,  to  prepare  and  lay  before  the  house  a  statement  containing 
the  information  in  question.  The  answer  to  these  requisitions  is 
inclosed  in  a  letter  directed  to  the  presiding  officer  of  the  house 
which  ordered  the  information,  and  sent  to  him  to  be  laid  before 
the  house.  Returns,  statements,  arid  accounts,  made  to  either 
branch,  in  pursuance  of  law,  are  transmitted  to  it  usually  in  the 
same  manner.  When  applied  to  personally,  if  information  merely 
is  wanted,  they  are  directed  to  furnish  it ;  if  their  opinion  is  also 
desired,  they  are  requested  to  give  it.^  This  right  apphes  as  well 
to  the  previous  collection  of  information,  as  to  the  communication 
of  it  when  obtained ;  and  does  not  appear  to  be  confined  exclu- 
sively to  officers  directly  connected  with  the  administration  of  gov- 
ernment; thus  by  an  order  of  the  house  of  representatives  in  con- 
gress, the  clerks  of  the  district  courts  were  directed  to  obtain  and 
furnish  the  attorney-general  with  tables  of  fees  payable  in  the  high- 
est courts  of  the  States  where  they  respectively  resided.'-^  In  all  these 
cases,  a  copy  of  the  resolution  duly  authenticated  by  the  clerk,  is, 
of  course,  sufficient. 

929.  Formerly,  it  appears  to  have  been  the  practice  to  request 
the  president  to  direct  the  proper  officer  to  prepare  And  lay  before 
the  house  the  information  wanted.^  But  this  practice  has,  it  is 
believed,  been  long  discontinued ;  and  papers  are  now  in  all  cases 
directly  requested  to  be  furnished  by  the  president,  in  virtue  of  a 
resolution  for  the  purpose.^  The  resolution  usually  requests  the 
president  to  furnish  the  information  in  question  only  if,  in  his  opin- 
ion, not  incompatible  with  the  public  interest ;  but  if  this  clause  is 
omitted,  the  president  will  feel  at  equal  liberty  to  decline  the  re- 
quest if  he  thinks  proper.  This,  of  course,  very  rarely  happens,^  and 
the  desired  information  is  usually  obtained  whether  it  Ues  within 
the  president's  peculiar  department  or  knowledge  or  not ;  but  the 

1  Cong.  Globe.  XV.  147.  *  J.   of  H.  I.  551,  552;    Same,  VIL   459; 

a  J.  of  H.  n.  212.  Same,  VIIL  127;  Same,  20th  Cong.  Ist  Sess. 

»  J.  of  H.  II.  239,  259,  237;  Same,  298;  J.  of     581;  Same,  29th  Cong.  1st  Sess.  653. 

8.  II.  208.  »  J.  of  H.  17th  Cong.  1st  Sess.  198. 


ClIAP.  IV.]  WITNESSES. 


369 


request  may  be,  and  sometimes  is,  declined ;  ^  and  there  is  one  kind 
of  information  that  is  always  refused,  namely,  the  instructions 
given  by  the  president  upon  which  a  treaty  is  negotiated,-  although 
these  instructions  are  laid  before  the  senate  in  executive  session, 
and  although  the  treaty  itself  may  be  before  the  house.  It  was 
formerly  the  practice  to  transmit  a  resolution  requesting  papers 
of  the  president  by  two  of  the  members,  who  usually  reporied 
thereon  verbally  tliat  they  had  delivered  the  request  with  wiiich 
they  were  charged,  and  that  the  president  answered  them  that  he 
would  give  the  subject  due  attention.'^  But  the  practice  now  is,  in 
all  cases,  that  the  resolution  is  authenticated  and  transmitted  in  the 
usual  manner  by  the  clerk  or  secretary.  In  order  to  enable  the 
executive  to  comply  with  resolutions  of  this  description,  it  is  pro- 
vided by  the  constitutions  in  some  of  the  States,  that  "  all  officers  in 
the  executive  department,  when  I'equired  by  the  governor,  shall  give 
him  information  in  writing,  upon  any  subject  relating  to  the  duties 
of  their  respective  offices." 


CHAPTER    FOURTH. 

OF    WITNESSES,    AND    THEIR    ATTENDANCE    AND    EXAMINATION 
BEFORE   EITHER  HOUSE   OR  COMMITTEES. 


Section  I.     Of  the   Occasions   on  which    an  Examination   of 

Witnesses  may  take  place. 

930.  One  of  the  modes,  by  which  a  legislative  assembly  obtains 
a  knowledge  of  the  facts,  upon  which  its  orders,  resolutions,  or  acts 
are  founded,  is  by  the  examination  of  witnesses;  who,  when  a 
proper  occasion  occurs,  may  be  summoned  and  examined,  as  in 
the  ordinary  courts  of  justice. 

ij.  of  n.  II.  482,  487;  Same,  18th  Cong.  1796,  and  again  by  President  Polk,  hv  his 

l8t  Sess.  139;  Cong.  Globe,  XVIII.  166,  167.  message  of  20th  April,  1846.     See  Appendix, 

«  J.  of  H.  30th  Cong.  1st  Sess.  232 ;  Ann.  of  XI. 

Cong.  4th   Cong.  1st  Sess.  760.     Information  '    ^  J.   of   H.   II.   239,  259;    Same,  482,  487; 

of  this  kind  was  first  refused  by  President  Same,  VIII.  50;  Same,  87;  San\e,  146. 
Washington,  by  his  message  of  30th  March, 


370  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

931.  Before  an  examination  of  witnesses  can  take  place,  con- 
sistently with  the  rules  of  orderly  proceeding,  it  is  necessary,  that, 
in  some  form  or  other,  the  house  should  come  to  a  previous  resolu- 
tion, that  an  inquiry  shall  be  entered  into  with  reference  to  the  sub- 
ject on  which  such  examination  is  proposed.^  It  is  not  in  order, 
therefore,  for  a  member  to  offer  to  produce  witnesses  to  be  examin- 
ed at  the  bar,  or  to  proceed  to  examine  another  member  in  his 
place,  in  support  of  a  motion,  which  he  has  made,  or  is  about  to 
make.- 

932.  When  the  house  has  come  to  a  resolution,  that  an  inquiry 
shall  be  entered  into  with  reference  to  a  particular  subject,  either  in 
the  house  itself,  or  in  a  committee  of  the  whole  house ;  or  has 
appointed  a  select  committee  to  make  such  inquiry,  either  by  a 
reference  to  it  of  some  petition,  return,  or  other  document,  or  by  a 
resolution ;  or  has  received  and  entertained  a  petition  praying  to 
be  heard  in  favor  of,  or  against,  a  particular  bill,  or  some  provision 
of  a  bill  which  is  pending ;  in  all  these  cases,  there  is  a  proper 
occasion  for  ordering  or  otherwise  procuring  the  attendance,  and 
proceeding  to  the  examination,  of  witnesses. 

933.  The  inquiries,  in  which  it  is  customary  for  either  house  of 
parliament  to  examine  witnesses,  may  be  regarded,  and  it  will  be 
useful  for  some  purposes  to  consider  them,  as  of  three  different 
kinds.  The  first  kind  includes  those  cases  in  which  the  house  is 
engaged  in  the  exercise  of  its  inquisitorial  functions  merely,  that  is, 
when  it  is  investigating  some  topic  or  matter  of  public  interest, 
with  a  view  to  general  legislation,  or  to  some  ulterior  proceeding, 
in  which  the  public  generally  are  concerned.  The  second  com- 
prises those  inquiries  in  which  the  house  is  engaged  in  the  exercise 
of  its  judicial  or  quasi  judicial  powers,  for  the  purposes  of  punish- 
ment, for  some  offence  either  directed  against  itself,  or  its  members, 
or  against  the  public.  The  third  sort  of  inquiries  consists  of  those, 
in  which  the  rights  and  interests  of  individuals  on  the  one  side  and 
on  the  other  are  alone  involved. 


Section  II.    Of  the  several  Modes  of  obtaining  or  compelling 
THE  Attendance  of  Witnesses. 

934.    When  it  has  been  resolved  upon,  that  an  inquiry  shall  take 
place  before  the  house,  or  before  a  committee  of  the  whole,  the 

»  Pari.  Reg.  XXIII.  684.  "  Hansard  (2),  XXIV.  225,  226;  Hatsell,  II. 

137,  and  notes. 


Chap.  TV.]  witnesses.  371 

usual  course  is  for  the  house,  on  the  suggestion  or  motion  of  those 
members  by  whom  the  inquiry  is  promoted,^  or  who  take  an  inter- 
est in  the  subject  of  it,  to  order  that  certain  witnesses  named-  by 
them^  do  attend  the  house  or  the  committee  on  a  day  fixed.*  U 
the  inquiry  is  in  the  house  of  lords,  either  before  the  house,  or  any 
committee,  whether  of  the  whole  or  select,  the  witnesses  are  ordered 
to  attend  at  the  bar,  on  a  certain  day,  to  be  sworn.'' 

935.  The  mode  of  proceeding  stated  in  the  foregoing  paragraph 
is  according  to  the  modern  practice.  At  an  earlier  period,  it  ap- 
pears to  have  been  customary  to  pass  an  order  directing  Mr. 
Speaker  to  issue  his  warrant  for  summoning  the  witnesses.^  The 
order  for  the  warrant  sometimes  contained  the  names  of  the  wit- 
nesses to  be  summoned ;  but,  more  frequently  was  in  general  terms, 
for  the  attendance  of  all  such  witnesses,  "  as  the  parties  of  either 
side  shall  think  fit  to  make  use  of  at  the  hearing," "  or  "  as  shall  be 
desired  to  attend  the  committee ; "  '^  or,  of  witnesses  to  attend  at 
the  hearing  of  the  matter  upon  a  certain  petition,''  or  bill ;  '^^  or  "  of 
such  witnesses  as  there  shall  be  occasion  for  at  the  hearing  of  the 
cause  touching  the  return  and  election"  for  such  a  borough.''  In 
all  these  cases,  the  persons  to  be  summoned  as  witnesses  were  of 
course  to  be  designated  by  the  parties  on  whose  behalf  the  order 
was  passed,  in  order  that  their  names  might  be  inserted  in  the  war- 
rant. This  practice  appears  now  to  be  confined  to  the  trial  of  con- 
troverted elections,  in  reference  to  which  it  has  been  established  by 
law. 

936.  The  order  for  the  attendance  of  witnesses,  or  for  the  issuing 
of  a  speaker's  warrant  to  summon  them,  may  also  require  the  pro- 
duction of  books,  papers,  and  records.  In  the  former  case,  the 
order  ought  to  be  as  spL*cific,  and  to  describe  the  books,  papers,  or 
records  to  be  produced,  with  as  much  certainty  as  the  nature  of  the 
case  will  admit  of;  in  the  latter  the  order  maybe  in  as  general 
terms,  as,  for  example,  for  such  books  or  writings  as  shall  be  desired, 
as  the  order  for  issuing  the  warrant;'-  but  the  warrant  itself  should 
be  as  specific  and  as  certain  as  above  mentioned.  It  does  not  ap- 
pear to  be  necessary,  however,  that  the  name  of  the  particular  wit- 

1  Grey,  TIT.  51.  6  Afny,  306. 

2  It  seems  there  may  be  a  isnmmons  for  wit-         "  Cumin.  .lour.  X.  84,  136  236  278,  647. 
nesses  witliout  divulging  their  names.  Hatsell,         '  Comin.  Jour.  VIII.  322. 

IV.  213.  Members,  moving  for  witnesses  to  be  *  Comm.  -lour.  X.  547. 

summoiiel,   ilireeteil   by  the   house  to  nanie  *  Comm.  .lour.  X.  278. 

them.     Grey,  III.  51*,  68*.  >»  Comm.  Jour.  X.  236. 

*  Grey.  III.  51.  "  Comm.  Jour.  X.  34. 

*  May,  307.  "  Comm.  Jour.  X.  236. 


372  LEGISLATIVE    ASSEMBLIES.  [PaRT    V. 

ness,  who  is  required  to  produce  a  paper  or  other  document  should 
be  mentioned  in  the  order  or  warrant,  provided  he  be  otherwise 
designated  or  may  be  ascertained  with  sufficient  certainty.  Thus, 
the  order  may  direct  that  the  proper  person  or  officer  shall  attend 
■^nth  the  books,  papers,  or  records  desired,  as,  for  example,  a  proper 
person  from  a  banking-house  named,  with  their  banking  books  for 
a  particular  month ;  ^  or  the  proper  officer  with  a  specified  paper 
from  one  of  the  public  offices;-  or  a  particular  paper  may  be 
ordered  to  be  laid  before  the  house,  without  specifying  by  whom 
it  is  to  be  done.^ 

937.  The  house  may,  of  course,  make  all  such  orders,  with  refer- 
ence to  the  attendance  and  examination  of  witnesses,  as  the  pecu- 
liar circumstances  of  each  case  may  render  convenient  or  necessary. 
Thus,  Ihere  may  be  as  many  separate  orders  made  from  time  to 
time,  for  the  attendance  of  witnesses,  during  the  inquiry,  as  the  con- 
venience of  the  parties,  or  the  circumstances  of  the  investigation, 
may  require ;  *  so  an  order  for  the  attendance  of  witnesses  on  the 
hearing  of  a  private  matter  may,  if  the  house  thinks  proper,  impose 
it  as  a  condition  upon  the  parties,  that  they  shall  pay  the  witnesses 
their  reasonable  charges,  if  required,  for  their  travel  and  attend- 
ance;'^ so,  the  house  may,  on  the  petition  of  one  of- the  parties, 
order  the  other  to  furnish  the  petitioner  with  the  names  of  the  wit- 
nesses to  be  produced  by  such  party,  on  pain  of  not  being  per- 
mitted otherwise  to  examine  them ;  '^  so  the  order  for  the  attendance 
of  witnesses  may  be  discharged  altogether  ; "  or  discharged  for  one 
day  and  renewed  for  another;*  or  discharged  as  to  a  particular 
witness  and  another  substituted  in  his  place.^ 

938.  An  order  for  the  attendance  of  witnesses  may  require  them 
to  appear  and  attend  from  day  to  day,  until  the  inquiry  has  been 
concluded  ;  ^*^  or,  which  is  the  more  usual  form,  it  may  direct  their 
attendance  either  forthwith,  or  on  a  particular  day  named,  without 
requiring  them  to  continue  in  attendance.  In  this  latter  case,  the 
order  is  obligatory  on  the  witness  only  during  the  day  on  which 
his  attendance  is  directed ;  ^^  on  which  day  it  is  the  duty  of  the  wit- 


1  Comm.  Jour.  LXIV.  17,  35.  with  the  places  of  abode  as  well  as  with  the 

2  Comm.  .Jour.  LXIV.  23,  24.  names  of  the  witnesses.    The  former  part  of 

*  Comm.  Jour.  LXIV.  28.  the  petition  was  refused. 

♦  See    Comm.    Jour.    LXIV.    the    several  '  Comm.  Jour.  IX.  502. 

orders  for  the  attendance  of  witnesses  on  the  ^  Comm.  Jour.  XXXV.  200,  588. 

inquiry  relative  to  tlie  Dulie  of  York.  »  Comm.  Jour.  XXXV.  329. 

6  Comm.  Jour.  VIII  322.  w  Comm.  Jour.  X.  395. 

•  Comm.  Jour.  XIII.  290.    In  this  case,  the  "  Comm.  Jour.  LXIV.  17,  24,  31,  32. 
request  of  the  petitioners  was  to  be  furnished 


Chap.  IV.]  witnesses.  373 

ness  to  attend  and  remain  in  attendance,  during  the  sitting  of  the 
house,  whether  called  or  not,  unless  the  order  should  be  discharged, 
or  the  inquiry  should  be  postponed,^  on  pain  of  being  punished,  if 
he  withdraws,  as  for  a  contempt."^  It  is  necessary,  therefore,  whf-re 
witnes.-es  are  in  attendance,  in  pursuance  of  such  an  order,  and 
their  attendance  is  made  necessary  on  another  day,  either  because 
the  investigation  is  not  concluded,  or  because  it  is  put  ofl'  to  a 
future  time,  that  the  order  for  their  attendance  should  be  renewed 
for  the  day  on  which  it  is  proposed  to  continue  the  inquiry.-^ 

939.  When  the  inquiry  is  referred  to  a  select  committee,  the 
most  usual  course  is,  either  at  the  time  of  its  appointment,  or  sub- 
sequently, to  give  the  committee  power  to  send  for  persons,  papers, 
and  records;  in  which  case,  the  attendance  of  a  witness  before  the 
committee  is  ordinarily  secured  by  an  order  signed  by  the  chairman 
by  direction  of  the  committee;  but  if  a  witness  should  neglect  to 
ai)pear  when  summoned  in  this  manner,  his  conduct  must  be  re- 
ported to  the  house,  by  whom  an  order  is  immediately  made  for 
his  attendance.  If,  in  the  mean  time,  the  witness  should  appear 
before  the  committee,  the  order  for  his  attendance  may  be  dis- 
charged ;  ^  but,  if  he  still  neglects  to  ap})ear,  he  is  to  be  dealt  with 
as  in  other  cases  of  disobedience  to  the  order  of  the  house.'^  If  the 
committee  should  not  be  authorized  to  send  for  persons,  papers,  and 
records,  at  the  time  of  then*  aj^pointment,  this  power  may  be  con- 
feiTed  upon  ihem  afterwards,  if  necessary ;  or,  on  the  re({uest  of  the 
committee,  or  otherwise,  an  order  may  be  made  by  the  house  for 
the  attendance  of  witnesses  before  them. 

940.  The  power  to  send  for  persons,  papers,  and  records,  is  not 
usually  given  to  committees  oh  private  bills.  The  parties  interested 
are  generally  able  to  secure  the  attendance  of  then*  witnesses,  with- 
out applying  to  the  committee  ;  but  when  they  desire  to  compel  the 
attendance  of  an  adverse  or  unwilling  witness,  they  should  apply 
to  the  committee,  who,  when  satisfied  that  due  diligence  has  been 
used,  and  that  the  witness  is  material  to  the  inquiry,  direct  a  special 
report  to  be  made  to  the  house;  upon  which  an  order  is  made 
to  oblige  the  witness  tcC  attend  and  give  evidence  before  the  com- 
mittee.'' 

941.  When  the  evidence  of  a  peer,  peeress,  or  lord  of  parlia- 

1  Coinin.  Jour.  XXXV.  200,  588.  *  Comm.  .Jour.  XCI.  352. 

2  Hans.  (1),  XI.  642;  Hans.  (2),  II.  320.  s  jj-iy,  30S. 

3  Coiiiin.  .lour.  LXIV.  17,  21,  31,  32;  Same,  «  May,  308;    Comm.    Jour.   XCVIII.   152, 
XXXVII.  354,  724,  727;  Same,  XXXV.  202,  153, 174,  279,  288. 

823,  324. 

32 


374  '  LEGISLATIVE   ASSEMBLIES.  [PaRT   V 

ment,  is  required  in  the  house  of  lords,  the  lord  chancellor  ia 
directed  to  write  a  letter  to  the  party,  desiring  his  or  her  attend- 
ance to  be  examined  as  a  witness.^ 

942.  If  the  evidence  of  a  member  of  the  house  of  commons  is 
desired  in  the  house,  or  before  a  committee  of  the  whole  house,  the 
course  is  to  order  such  member  to  attend  in  his  place,  on  the  day 
when  the  inquiry  is  to  take  place.-  If  no  order  for  the  attendance 
of  a  member  has  been  made,  the  house  or  committee  of  the  whole 
may  at  any  time,  during  the  progress  of  the  inquiry,  call  upon  any 
of  the  members  present  to  be  examined  as  witnesses.  But  when 
the  attendance  of  a  member  is  required  before  a  select  committee, 
which  has  a  general  power  to  send  for  persons,  papers,  and  records, 
it  is  the  custom  to  request  such  member  to  come,  without  address- 
ing a  summons  to  him  in  the  ordinary  form.  If  a  member,  so 
requested,  refuses  to  attend  and  give  his  evidence,  the  committee  is 
to  inform  the  house  of  such  refusal.  The  house  may  then,  if  it 
thinks  proper,  make  an  order  for  the  attendance  of  the  member 
before  the  committee.^  A  member  may  also  submit  himself  to 
examination  as  a  witness,  without  any  order  of  the  house ;  in 
which  case,  he  is  to  be  treated  precisely  like  any  other  witness,  and 
is  not  at  liberty  to  qualify  his  submission,  by  stipulating  that  he  is 
to  answer  only  such  questions  as  he  pleases.* 

943.  If  the  attendance  of  a  peer  should  be  desired,  to  give  evi- 
dence before  the  house  of  commons,  or  any  committee  of  that 
house,  a  message  is  sent  by  the  house  of  commons  "  to  the  lords  to 

1  May,  307.  called  upon  to  state  what  he  considered  to  be 

2  May,  308.  the  usage  with  respect  to  members  attending 
^  Comm.  Jour.  X.  51 ;  Same,  XIX.  403.  select  committees,  informed  the  house,  "  that 
*  Some  question  appears  to   have  been  re-  he  had  searched  the  Journals,  within  the  last 

cently  made  in  the  house  of  commons,  whether  two  or  three  days,  and  had  not  as  yet  dis- 
it  was  within  the  constitutional  power  of  the  covered  any  instance,  where  an  order  had 
house  to  compel  the  attendance  of  one  of  its  been  made  on  a  member  of  the  house  to  give 
members  to  give  evidence  before  a  select  com-  evidence  before  a  select  committee." — Hans, 
mittee.  On  the  28th  June,  1842,  a  select  (3),  LXIV.  771,  982, 1015.  The  speaker  seems 
committee  reported,  that  a  member  of  the  to  have  overlooked  entirely  the  case  of  the 
house  had  declined  to  comply  with  their  re-  four  members,  who,  on  the  19th  January,  1720, 
quest  for  his  attendance,  as  a  witness.  A  were  ordered  by  the  house  to  attend  the  com- 
motion was  thereupon  made,  for  ordering  him  mittee  of  secrecy,  and  be  examined  as  wit- 
to  attend  the  committee  and  give  evidence,  nesses  in  the  most  solemn  manner,  relating  to 
This  motion  led  to  a  debate,  which  was  ad-  certain  proceedings  of  the  South  Sea  Com- 
journed;  and,  in  the  mean  time,  a  committee  pany,  of  which  these  members  were  directors. 
wa.s  appointed  to  examine  precedents.  But,  —  Comm.  Jour.  XIX.  403.  See  also,  in  rela/- 
on  the  day  for  resuming  the  debate,  the  mem-  tion  to  the  general  power  of  the  hous«  to 
ber  in  question  having  signified  his  willingness  examine  members  as  witnesses,  the  remarks 
to  attend  the  committee,  the  motion  was  with-  of  Mr.  Wynne,  and  Sir  Robert  Peel,  Hans.  (2) 
drawn,  and  the  matter  ended.  In  the  course  XVIII.  1067,  &c.,  1084,  &c.,  in  which  the 
of  the  debate,  which  took  place  on  this  occa-  authority  of  the  house  to  compel  its  members 
•ion,  the  speaker,  Mr.  Shaw  Le  Fevre,  being  to  testify  is  fully  sustained. 


5hAP.  IV.]  WITNESSES.  375 

request  that  their  lordships  will  give  leave  to  ihe  peer  in  question 
to  attend,  in  order  to  his  being  examined."  If  such  peer  should  be 
in  his  place,  when  this  message  is  received,  and  he  consents,  leave 
is  immediately  given  for  him  to  attend  and  be  examined,  if  he 
thinks  fit.  K  not  present,  a  message  is  returned  on  a  future  day, 
when  the  peer  has,  in  his  place,  consented  to  go.  The  same  form 
exactly  is  observed  by  the  lords,  when  they  desire  the  attendance 
of  a*  member  of  the  house  of  commons.  When  the  attendance  of 
a  member  of  one  house  is  desired  by  a  committee  of  the  other,  it  is 
advisable  to  give  such  member  private  intimation,  and  to  learn  that 
he  is  then  willing  to  attend,  before  a  formal  message  is  sent  to 
request  his  attendance.^  These  formalities  are  not  usual  in  the 
case  of  private  bills."- 

944.  When  the  attendance  of  any  of  the  officers  of  one  house  is 
desu-ed  in  the  other,  in  order  to  their  being  examined  as  witnesses, 
either  in  the  house  itself  or  before  any  of  its  committees,  the  same 
ceremony  is  maintained  between  the  two  houses,  as  where  the 
members  of  the  one  are  requested  to  attend  in  the  other  as  wit- 
nesses ;  ^  but  when  leave  is  given  them  to  attend,  the  words  "  if 
they  think  fit,"  which  are  used  in  the  case  of  members,  are  omitted 
in  the  answer.*  Whether,  when  one  has  given  its  members  or  offi- 
cers leave  to  attend  the  other  or  its  committees,  as  witnesses,  the 
latter  house  thereby  becomes  invested  with  power  to  punish  such 
witnesses  for  prevarication  or  other  contempt,  is  a  question,  which 
does  not  seem  ever  to  have  been  made.  If  witnesses  of  this  de- 
scription should  be  guilty  of  any  breach  of  their  duty,  in  this  respect, 
the  dignity  of  the  house  against  which  they  have  ofiended  would 
require  their  punishment ;  but  a  due  regard  to  the  dignity  and 
rights  of  the  house  to  which  they  belong  would  seem  to  require, 
that  in  such  cases,  as  in  others  of  offences  against  a  coilrdinate 
branch,  the  punishment  should  be  inflicted  by  their  own  house. 

945.  When  an  order  has  been  made  for  the  attendance  of  wit- 
nesses, a  transcript  of  it  authenticated  by  the  clerk  of  the  house 
must  be  served  upon  them  by  the  proper  officer.  If  a  witness  is  in 
or  near  the  place  where  parliament  is  sitting,  the  order  is  served  on 
him,  that  is,  given  to  him  personally  ;  if  at  a  distance,  it  is  forvvarded 
to  him  by  the  sergeant-at-ai-ms  by  post,  or,  in  special  cases,  by  a 
messenger.'^^ 

1  Mav,  309,  310;   J.  of  S.  IV.  259;  J.  of  H.  «  Hatsell,  III.  21. 

14th  Con;;.  1st  Sess.  637 ;  J.  of  S.  15th  Cong.  «  J.  of  S.  22d  Cong.  1st.  Sess.  370. 

2d  Sess.  195 ;  J.  of  H.  15th  Cong.  2d  Sess.  216 ;  *  Comm.  .Jour.  X.  325 ;  May,  311. 

i.  of  S.  14th  Cong.  1st  Sess.  410.  *  May,  306,  307. 


376  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

946.  If  a  ^\atness  upon  whom  an  order  for  his  attendance  has 
been  personally  served,  is  guilty  of  disobeying  the  order ;  or  if  one 
absconds  for  the  purpose  of  preventing  the  service  of  the  order  upon 
him ;  such  delinquent  witness  is  then  ordered  to  be  taken  into  cus- 
tody, by  the  sergeant-at-arms  or  other  proper  officer.  If,  however, 
there  is  reason  merely  to  believe,  that  a  witness  is  purposely  keep- 
ing out  of  the  way  to  avoid  service,  the  practice  is,  in  the  first 
instance,  to  direct  that  the  service  of  the  order  at  his  house  shall  be 
deemed  good  service.  This  precaution  is  observed,  of  course,  in 
order  to  guard  against  the  danger  of  taking  a  witness  into  custody, 
who  may  be  innocent  of  any  intentional  contempt  of  the  house. 
But,  where  the  circumstances  of  the  case  are  such  as  to  preclude 
aU  reasonable  doubt,  as  to  the  intention  of  the  witness,  he  may  be 
ordered  into  custody  at  once.  Thus,  where  it  appeared  by  1he 
report  of  a  committee,  that  two  persons  who  were  ordered  to  attend 
the  committee  had  not  attended ;  but  that,  having  attended  on  the 
day  previous,  agreeably  to  order,  they  had  afterwards  purposely 
kept  out  of  the  way,  in  order  to  avoid  being  served  with  the  order 
for  their  attendance  on  the  day  in  question,  they  were  ordered 
forthwith  to  be  taken  into  the  custody  of  the  sergeant-at-arms.^  If 
after  such  service  of  the  order,  the  witness  should  not  attend,  he  is 
then  ordered  (sometimes  not  immediately  but  after  a  short  interval) 
to  be  taken  into  custody.^ 

947.  When  witnesses  abscond,  or  keep  out  of  the  way,  so  that 
the  officers  of  the  house  are  unable  to  take  them  into  custody,  in 
pursuance  of  the  orders  of  the  house,  the  last  step  taken  is  to 
address  ihe  crown  to  issue  a  proclamation,  offering  a  reward  for 
then-  apprehension  ;  ^  the  consequence  of  which  usually  is,  in  a  very 
short  time,  the  voluntary  surrender  of  the  d  elinquents,  into  the  cus- 
tody of  the  officer. 

948.  If  a  person,  whose  testimony  is  desired  as  a  witness,  is  then 
in  the  custody  of  the  keeper  of  one  of  the  public  prisons,  either  for 
debt  or  otherwise,  an  order  is  made  requiring  the  keeper  of  such 
prison  to  bring  his  prisoner  in  custody  to  the  house  or  the  commit- 
tee, to  be  examined.**  The  order  may  either  require  the  prisoner  to 
be  brought  up,  on  a  day  named,  or  from  day  to  day,  or  as  often  as 
the  committee  may  require.  The  order  is  carried  into  effect  by 
means  of  a  speaker's  warrant;^     Where  a  witness  is  in  the  custody 

1  Comm.  Jour.  XXXV.  323,324.  ■•  May,  306,  307;  Comm.  Jour.  XIX.  514; 

2  May,  306,  307.  Comm.  Jour.  XXXV.  78,  379. 

fc.May,  SOS,  309.  '  Coram.  Jour.  LXIV.  55,  60  71  72.  Where 


Chap.  IV.]  witnesses.  377 

of  the  sergeant-at-arms,  he  is  to  be  brought  in  custoily  to  the  house, 
or  cominittee,  in  the  manner  above  mentioned,  in  pursuance  of  an 
order  of  the  house,  without  any  other  warrant.^ 

949.-  When  a  person,  whose  testimony  is  desired  by  one  house, 
is  in  the  custody  of  the  other,  the  practice  is  for  the  former,  by  mes- 
sage, to  request  the  latter  to  direct  their  olHcer  to  attend  with  the 
witness  in  custody,  at  such  time  or  tim'es  as  his  attendance  may  be 
desired  by  the  house  or  a  committee,  for  the  purpose  of  his  being 
examined.- 

950.  Witnesses  that  have  been  taken  into  or  are  in  custody,  for 
disobeying  the  order  of  the  house,  for  their  attendance,  or  for  keep- 
ing out  of  the  way,  or  absconding,  are  usually  committed  to  New- 
gate, by  way  of  punishment  for  theh  offence  ;  from  whence,  whilst 
thus  undergoing  their  punishment,  they  are  brought  in  custody  to 
the  house,  or  before  a  committee,  to  give  their  evidence,  whenever 
their  testimony  is  wanted ;  the  speaker's  warrant  being  ordered  to 
be  issued  for  that  purpose. 

951.  If  it  appear,  however,  to  the  house,  that  a  witness,  who  has 
thus  been  taken  into  custody,  has  not  been  guilty  of  any  intentional 
contempt, —  as  where  a  witness  neglected  to  attend  in  obedience  to 
the  order  of  the  house,  by  reason  of  infirmity,  being  eighty-six  years 
of  age,  or  for  want  of  means  to  defray  his  necessary  expenses,'^  — 
such  witness  may  be  discharged  out  of  custody.  So,  it  is  pre- 
sumed, a  witness  who  has  intentionally  disobeyed  or  set  at  defiance 
the  order  of  the  house,  and  has  been  sentenced  to  imprisonment  as 
a  punishment  therefor,  may,  upon  submirting  himself  to  the  author- 
ity of  the  house,  be  discharged  from  such  custody,  provided  the 
house  should  be  satisfied  that  he  would  attend  and  submit  himself 
to  examination.^  On  one  occasion,  certain  witnesses,  who  had 
been  taken  on  a  speaker's  warrant,  were  freed  from  restraint,  on 
recognizing,  without  surety,  in  the  sum  of  one  thousand  pounds 
each,  to  appear  from  day  to  day,  "  and  testify  at  such  times,  as  the 
house  or  the  committee  for  the  business  shall  require." '" 

952.  The  mode  of  obtaining  the  attendance  of  witnesses  before 
an  election  committee  is  regulated  chiefly  by  the  statute  provisions 
relating  to  the  trial  of  controverted  elections.     When  an  election 

there  are  two  or  more  witnesses  in  the  same         ^  Coram.  Jour.  XXI.  926. 
prison,    wliose  testimony  is   wantea    at  the         3  Comm.  .lour.  LXXIV.  170,  181,  182. 
eamo    time,    they   may   all    be    included   in         *  See  Hans.  (1),  XX.  845,  846. 
the  same  warrant.  —  Comm.  Jour.  LXIV.  71,         ^  Comm.  Jour.  II.    To  what  extent  this  preo- 

fi,  edeut  has  been  followed  does  not  appear. 
•  Comm.  Jour.  LXIV.  55,  60,  71,  72. 

32* 


378  LEGISLATIVE   ASSEMBLIES.  [PaRT   V 

petition  is  presented  and  received,  there  is  a  general  order  made, 
that  the  speaker  issue  his  waiTant  for  such  persons,  papers,  and 
records,  as  shall  be  thought  necessary  by  the  several  parties,  on  the 
hearing  of  the  matter  of  the  petition.  In  pursuance  of  this  order, 
all  witnesses  intended  to  be  examined  before  an  election  committee 
are  summoned,  before  the  appointment  of  the  committee,  by  a 
speaker's  warrant  issued  on  the  application  of  the  parties,  and  with- 
out any  special  order  of  the  house  in  each  case.  Disobedience  to 
a  speaker's  warrant,  issued  by  virtue  of  this  general  order,  is  punish- 
able in  the  same  manner  as  disobedience  to  a  special  order  of  the 
house.  After  the  appointment  of  an  election  committee,  the  wit- 
nesses are  summoned  by  orders  signed  by  the  chahman.^ 

953.  Strangers  not  being  allowed  to  enter  the  room,  in  which 
the  house  is  sitting,  until  regularly  called  in,  the  proper  place  for 
witnesses  summoned  to  attend  the  house,  or  a  committee  of  the 
whole,  to  be  in  attendance,  is  in  the  lobby,  or  in  some  other  room 
if  there  is  one,  appropriated  for  the  purpose.  Witnesses,  ordered 
to  attend  a  select  committee,  are  bound  to  attend  at  the  place 
specified  by  the  order ;  which  may  be  either  one  of  the  committee 
rooms,  or  such  other  place  without  the  precincts  of  the  house,  as 
the  committee  having  authority  to  adjourn  from  place  to  place, 
have  fixed  upon  to  sit  in."^ 

954.  When   a   witness,  by  reason  of  sickness  or  infirmity,  is 
unable   to  attend,   and    this   fact  is  made    known  to  the  house, 
the   examination   of    such  witness    may  be   taken    at   the   place 
where  he  is,  by  a  committee  or  certain  members  appointed  by  the 
house  for  the  purpose.     If  the  evidence  is  wanted  before  a  select 
committee,  the  house  may  either  authorize  the  committee  to  take 
the  examination,  or  to  appoint  certain  of  its  own  members  for  that 
purpose,  or  the  house  may  appoint  certain  members  not  of  the  com- 
mittee for  the  same  purpose.     Such  examination  may  either  be 
taken  upon  interrogatories,  prepared  beforehand,  and  agreed  to  by 
the  house  or  committee  ;  or  it  may  be  upon  interrogatories  framed 
at  the  time  by  the  members  appointed  to  conduct  the  examination. 
In  either  case,  the  manner  of  conducting  the  examination  may  be  pre- 
scribed, as,  for  example,  that  it  shall  be  in  writing  and  signed  by  the 
witnesses,  or  that  it  shall  take  place  in  the  presence  of  the  parties ; 
or  it  may  be  left  to  the  members  appointed  to  conduct  it  without 
any  particular  instructions,  in  which  case,  the  examination  should 
be  conducted  according  to  the  ordinary  course  of  proceeding.     It  is 

1  May,  307,  308.  *  Comm.  Jovu.  XXI.  24. 


Chap.  IV.]  witnesses.  •  379 

competent,  for  the  house,  also,  if  it  thinks  fit,  to  give  a  committee 
general  power,  "  if  any  of  the  witnesses  shall  be  sick,  or  hindercid 
by  other  impediment,  that  they  cannot  come  to  them,"  to  take  the 
examination  of  such  witnesses  by  certain  of  their  own  members.^ 


Section  III.     Of  the  Examination  of  Witnesses. 

955.  The  principal  difference  between  the  two  houses  of  parlia- 
ment, in  respect  to  the  examination  of  witnesses,  is,  that  in  the 
house  of  lords  they  are  sworn  and  give  their  evidence  under  oath ; 
whereas,  in  the  house  of  commons,  they  testify  without  any  such 
sanction.  In  the  former,  every  witness  is  sworn  at  the  bar,  whether 
he  is  about  to  be  examined  by  the  house,  by  a  committee  of  the 
whole  house,  or  by  a  select  committee  ;  -  and,  if,  while  the  house  is 
in  committee,  it  becomes  necessary  to  examine  a  witness  who  has 
not  been  sworn,  the  house  is  resumed  for  the  purpose  of  swearing 
the  witness,  and  then  again  immediately  put  into  the  committee.-^ 

956.  The  house  of  commons  has  not,  at  any  period,  except 
during  the  commonwealth,^  claimed,  much  less  exercised,  the  right 
of  administering  an  oath  to  witnesses  ;  not  even  in  cases  of  privi- 
lege, or  in  cases  of  controverted  elections,^  where  its  right  of 
judicature  was  acknowledged,  and  on  questions  upon  which  it 
was  admitted  to  be  the  sole  court  competent  to  determine.^  But, 
from  what  anomalous  cause,  and  at  what  period,  the  power  of 
administering  oaths,  which,  by  the  laws  of  England,  has  been  con- 
sidered essential  to  the  discovery  of  truth,  and  which  must  have 
been  inherent  in  the  high  court  of  parliament,  has  been  retained  by 
one  branch  of  it,  and  severed  from  the  other,  cannot  now  be  satis- 
factorily established.  The  two  houses,  in  the  course  of  centuries, 
have  appropriated  to  themselves  different  kinds  of  judicature,  but 
the  one  has  exercised  the  right  of  administering  oaths  without 
question,  while  the  other,  except  as  already  mentioned,  has  never 
yet  asserted  it." 

957.  But,  though  the  commons  have  never  undertaken  to  exer- 
cise this  right,  except  during  the  brief  period  of  the  commonwealth, 

1  Hatsell,  II.  138,  n. ;  Coram.  Jour.  I.  849;  the  trial  of  controverted  elections,  which  was 

Same,  II.  49,  194.  introduced  by  the  Grenville  act,  the  commit- 

"  May,  306,  312.  tee  appointed  to  try  an  election  case  is  author- 

»  Pari.  Reg.  XIII.  324.  ized  to  examine  witnesses   on  oath.     But  no 

*  See   Comm.  Jour.   VI.   214;    Same,  VII.  such  power  is  thereby  conferred  ou  the  house. 
887.  «  Hatsell,  II.  158. 

*  According  to  the  system  of  proceeding  for  '  May,  313. 


380  LEGISLATIVE    ASSEMBLIES.  [PaRT   V 

their  experience  "of  it  then  seems  to  have  rendered  them  evidently 
alive  to  its  importance,  and,  for  nearly  a  century  after  the  restora- 
tion, they  resorted  to  various  expedients  in  order  to  supply  the 
defect  in  their  own  authority.  In  the  year  1678,  on  the  breaking 
out  of  the  popish  plot,  it  was  thought  expedient,  in  order  to  give  an 
appearance  of  greater  weight  to  the  testimony  of  the  witnesses  in 
that  business,  to  direct  certain  of  their  own  members,  who  hap- 
pened to  be  justices  of  the  peace  for  Middlesex  and  Westminster, 
within  the  Hmits  of  which  parliament  was  sitting,  to  withdraw  and 
take  the  evidence  on  oath.  This  practice  was  manifestly  irregular,  if 
not  illegal,  as  justices  of  the  peace  are  only  authorized  to  administer 
oaths  in  the  investigation  of  matters  within  their  own  jurisdiction, 
and  regularly  before  them.i  Another  mode,  equally  irregular, 
which  was  occasionally  resorted  to,  w^as  to  caU  in  the  assistance  of 
one  of  the  judges  of  the  common  law  courts.^  The  commons  also 
sought  to  aid  their  own  inquiries  by  examinations  on  oath  at  the 
bar  of  the  house  of  lords,  and  before  joint  committees  of  both 
houses ;  in  neither  of  which  expedients,  were  they  supported  by  the 
lords. 

958.  All  these  methods  of  obtaining  the  sanction  of  an  oath  to 
evidence  taken  at  their  instance  were  impUed  admissions,  on  the 
part  of  the  commons,  of  their  own  want  of  authority.  But,  in 
1715,  the  practice  was  introduced  of  empowering  justices  of  the 
peace  for  Middlesex  to  examine  witnesses  "  in  the  most  solemn 
manner,"  that  is,  on  oath,  before  committees  of  the  house ;  and,  in 
1720,  when  a  committee  was  appointed  to  inquire  into  the  affau's 
of  the  South  Sea  Company,  witnesses  were  ordered  to  be  examined 
before  them  in  the  most  solemn  manner,  without  any  mention  made 
of  the  persons  by  whom  they  were  to  be  sworn.  This  practice,  by 
which  the  commons  seemed  to  assume  a  right  to  delegate  to  others 
a  power  which  they  had  not  claimed  to  exercise  themselves,  pre- 
vailed until  about  the  year  1757 ;  since  which  time,  the  examina- 
tions of  witnesses,  in  aU  the  great  and  important  inquiries  that  have 
taken  place,  have  been  conducted  without  the  sanction  of  an  oath.^ 
In  this  country,  legislative  assemblies  have  no  authority,  unless  it 
is  conferred  upon  them  by  law,  to  administer  oaths  to  witnesses. 
This  power  is  very  generally  conferred. 

959.  Witnesses,  as  aheady  remarked,  may  be  examined  in  both 

1  Black.  Comm.  IV.  137.  house  of  congress.    J.  of  H.  in.  71, 154, 156, 

•  This  method  was  practised  in  the  lower     158,  165. 

3  Hatsell.  II.  160;  May,  314,  315. 


Chap.  IV.]  witnesses.  381 

branches,  either  before  the  house  itself,  or  before  a  committee  of  the 
whole,  or  a  select  committee.  The  mode  of  proceeding,  except  in 
some  few  unimportant  particulars,  being  substantially  the  same  in 
both  houses,  it  will  be  sufficient  to  describe  tlje  usual  course  in  the 
house  of  commons ;  noticing,  if  deemed  of  importance,  such  differ- 
ences as  exist  between  the  two  houses,  in  reference  to  any  particu- 
lar proceeding;  and  pointing  out  also  the  different  forms  of  pro- 
ceeding which  take  place,  according  as  the  examination  is  before 
the  house,  or  a  committee  of  the  whole,  or  a  select  committee. 

960.  When  an  inquiry  has  been  resolved  u})on,  in  which  wit- 
nesses are  to  be  examined  before  the  house  itself,  or  a  committee 
of  the  whole  house,  and  the  time  appointed  for  the  purpose  has 
arrived,  the  house  proceeds  with  the  usual  formalities  to  the  busi- 
ness which  is  the  order  of  the  day ;  and  the  witnesses  as  they  are 
wanted  are  then  called  in,  on  motion  and  question  taken,  if  neces- 
sary, by  the  sergeant-at-arms,  or,  if  in  custody,  brought  in  by  him  or 
the  officer  in  whose  custody  they  are,  and  placed  at  the  bar  for 
examination.^  When  a  motion  is  made  for  calling  in  a  witness,  it 
may  either  be  general,  or  may  specify  the  subject  upon  which  it  is 
proposed  to  examine  him.^ 

961.  When  witnesses  are  thus  called  or  brought  in  to  be  examined, 
either  before  the  house,  or  a  committee  of  the  whole,  the  rule  of 
proceeding  requires  that  the  bar  should  be  down ;  which  is  not  the 
case,  when  a  select  committee,  as,  for  example,  the  committee  of 
privileges,  are  sitting  in  the  house,  notwithstanding  such  committer 
may  be  so  constituted,  that  all  the  members  of  the  house  are  at 
liberty  to  attend  and  participate  in  the  proceedings.^ 

962.  When  a  witness  attends  in  the  custody  of  the  sergeant-at- 
arms,  it  is  in  strictness  requisite,  as  it  is  where  one  who  is  accused 

1  When  the  forms  of  proceeding,  if  strictly  with  the  inquiry  at  the  time  assigned  may  be 
observed,  require  a  motion  to  be  made,  sec-  opposed,  on  the  usual  motion  for  reading  the 
ended,  and  proposed,  the  subject  thus  brought  order  of  the  day;  or  if  the  inquiry  is  pro- 
forward  is  always  open  to  debate.  When,  ceeded  in,  a  motion  may  be  made,  before  any 
therefore,  it  is  proposed  in  the  house,  that  of  the  witnesses  are  called  in,  that  the  evi- 
witnesses  be  directed  to  attend  for  the  pur-  dence  about  to  be  produced  be  not  received 
pose  of  a  particular  inquiry,  the  propriety  or  (Hans.  (1),  XII.  855);  or  when  a  motion  is 
expediency  of  going  into  that  inquiry,  whether  made  for  calling  in  a  witness,  it  may  be  op- 
it  be  a  principal  one  or  incidental,  is  open  to  posed;  or  when  a  witness  has  been  called  in 
question  and  debate,  on  the  motion  for  the  without  opposition,  any  member  may  request 
attendance  of  the  witnesses  ;  although  it  may  him  to  withdraw,  and  then  oppose  the  motion 
already  have  been  debated  and  decided,  on  for  calling  him  in,  (Same,  847);  or  objection 
the  motion  for  the  inquiry,  or  for  the  appoint-  may  be  made  to  the  inquiry,  when  a  question 
ment  of  the  committee  for  the  purpose.  If,  is  put  to  the  witness. 
however,  the  witnesses  have  been  ordered  to  »  Pari.  Reg.  XII.  854,  etc. 
attend,  and  are  in  attendance,  the  proceeding        »  Comm.  Jour.  II.  26 ;  Hatsell,  H.  140.* 


382  LEGISLATIVE   ASSEMBLIES.  [PaET   V 

of  some  offence  against  the  house  is  brought  in  to  be  examined,,  or 
sentenced,  or  discharged,  that  the  sergeant  should  stand  by  the  wit- 
ness wath  the  mace  on  his  shoulder.^  When  a  witness  is  thus 
standing  at  the  bar,  the  speaker  alone  manages,  and  no  member  is 
at  hberty  to  speak,  not  even  for  the  purpose  of  suggesting  questions 
to  the  chair ;  and,  consequently,  in  such  a  case,  it  is  necessary,  that 
the  questions  to  be  proposed  to  the  witness -should  either  be  pre- 
viously reduced  to  wTiting  by  individual  members,  or,  which  is  the 
more  common  practice,  should  be  settled  beforehand  in  the  house, 
upon  the  report  of  a  committee  for  the  purpose  or  otherwise,  and  in 
the  possession  of  the  speaker  before  the  prisoner  is  brought  to  the 
bar.2  But  this  strictness  of  form,  as  Hatsell  suggests,  may  very 
well  be,  and,  in  point  of  fact,  usually  is,  dispensed  with;  and, 
when  this  is  the  case,  the  examination  is  conducted  in  the  ordinary 
manner. 

963.  When  a  witness,  not  in  the  custody  of  the  sergeant,  or  in 
custody  without  the  mace  standing  by  him,  is  at  the  bar  to  be 
examined,  the  regular  course  of  proceeding  requires,  that  the  neces- 
sary questions,  (except  such  as  are  put  by  the  speaker  himself  of 
his  own  motion,)  should  be  proposed  to  the  chair  by  the  individual 
members  (which  may  be  done  whilst  the  witness  is  standing  at  the 
bar,)  and  should  then  be  put  by  the  speaker  to  the  witness.^  The 
question,  thus  suggested,  should  regularly  be  put  by  the  speaker  in 
the  form  in  which  it  is  proposed ;  though,  if  the  speaker  thinks  the 
form  objectionable,  it  is  the  practice  for  him  to  alter  the  phrase- 
ology, and  to  put  the  question  in  what  he  deems  the  proper  form ; 
but,  still,  if  the  member  proposing  the  question  objects  to  the 
change,  and  insists  upon  its  being  put  in  the  original  form,  the 
sense  of  the  house  must  be  taken  as  to  the  terms  in  which  the 
question  shall  be  put.* 

964.  It  is  usual,  however,  for  the  sake  of  convenience,  to  dis- 
regard the  strict  rule  as  stated  in  the  preceding  paragraph,  and  to 
allow  the  members  themselves,  standing  uncovered  in  their  places,^ 
to  put  questions  directly  to  a  witness,  without  the  intervention  of 
the  speaker ;  though  this  is  a  practice  which,  according  to  Hatsell, 
is  irregular,  and  seldom  fails  to  produce  disorder.^     Where  mem- 

1  When  the  mace  lies  upon  the  table,  this  be  made.    By  Mr.  Speaker  Onslow,  Hatsell, 

constitutes  a  house;  when  under,  it  is  a  com-  II.  141,  n. 

mittee;  when  tlie  mace  is  out  of  tho  house,  no  *  May,  817;  Hatsell,  IL  142,  n. 

business  can  be  done;  when  from  the  table,  ^  Hatsell,  11.141. 

and  upon  the  sergeant's  shoulder,  at  the  bar,  *  Pari.  Reg.  XI.  188,  189. 

the  speaker  only  manages,  and  no  motion  can  ^  Hansard  (2),  XXIV.  225,  226. 

0  HatseU,  H.  141;   Pari.  Reg.  XL  233,  234, 


Chap.  IV.]  witnesses.  383 

bers  are  thus  allowed  to  conduct  the  examination  of  a  witness,  it  is 
still  supposed,  and  should  be  constantly  borne  in  mind  both  by  the 
member  examining  and  the  witness,  that  the  questions  are  sug- 
gested to  the  speaker  by  the  member,  and  that  they  are  put  to  the 
witness  by  the  speaker  by  the  authority  and  as  the  representative 
of  the  house.^  The  answers  of  the  witness  should  therefore  be 
returned  to  the  chair,  that  is,  to  the  house  ;  and  they  cannot,  with- 
out disrespect  to  the  house,  be  addressed  personally  to,  or  contain 
remarks  upon,  the  member  by  whom  the  questions  are  in  fact  pro- 
pounded ;  although  the  questions  should  be  improper,  and  tend  to 
provoke  personality .^  The  only  course,  proper  for  a  witness  to  pur- 
sue, in  such  a  case,  would  be  either  to  answer  the  question  substan- 
tially, and  without  regard  to  its  form,  or  to  decline  answering  and 
to  refer  it  to  the  house  for  their  consideration. 

965.  When  an  inquiry  is  instituted,  and  an  examination  of  wit- 
nesses undertaken  by  the  house,  in  its  inquisitorial  capacity,  it  is 
customary  for  the  member,  on  whose  motion  or  suggestion  the  in- 
quiry has  been  engaged  in,  or  for  some  of  the  members  voting 
with  Mm  for  the  inquiry,  to  take  the  lead  in  the  examination  of  the 
witnesses,  by  making  the  proper  motions  for  calling  them  in,  and 
either  by  suggesting  or  putting  such  introductory  questions  to  each 
witness,  as  may  be  necessary  to  bring  foi-ward  the  facts  relating 
to  the  subject  of  the  inquiry  which  are  within  his  knowledge;  or, 
in  other  words,  to  examine  the  witnesses  in  chief.  On  the  other 
hand,  it  is  customary  for  those  members  who  are  opposed  to  the 
inquiry,  or  to  the  purpose  which  is  to  be  effected  by  it,  to  cross- 
examine  the  witnesses.  In  fact,  when  the  house  is  divided  in 
opinion,  in  reference  to  the  purpose  of  an  inquiry,  the  leading 
members  arrange  themselves,  and  procure  the  attendance  of  wit- 
nesses to  be  ordered,  on  the  one  side  and  on  the  other,  and  examine 
and  cross-examine  the  witnesses,  very  much  after  the  manner  of 
opposing  counsel,  in  the  trial  of  a  cause  in  any  of  the  ordinary 
courts  of  justice.^ 

966.  When  the  house  is  proceeding  in  its  judicial  capacity,  or 
the  inquiry  relates  wholly  to  a  matter  of  private  interest,  it  is  the 
practice  to  allow  the  parties  to  be  heard  and  to  introduce  and  ex- 
amine witnesses  by  themselves  or  their  counsel.  This  is  a  privilege 
usually  granted  by  the  house  upon  the  petition  of  the  parties,  but 
sometimes  on  motion  merely.  When  this  privilege  is  accorded, 
the  inquiry  is  then  conducted  by  the  parties  or  their  counsel,  pre- 

1  Cavendish's  Debates  on  Canada,  170,  171.         '  Hansard  (1),  XXXIX.  976.     See  also  the 
•  Cav.  Deb.  Can.  170.  inquiry  concerning  the  duke  of  York. 


384  LEGISLATIVE    ASSEMBLIES.  [PaRT    V. 

cisely  in  the  same  manner,  as  if  they  were  before  any  other  judicial 
tribunal.  Sometimes  parties  are  allowed  to  be  heard  and  to  exam- 
ine witnesses  so  far  as  their  private  interests  are  affected,  for  or 
against  a  measure  of  public  concern ;  and,  in  such  cases,  they  are 
to  be  heard  and  to  examine  witnesses  to  the  extent  allowed  them, 
in  the  same  manner,  as  if  their  private  interests  were  alone  con- 
cerned. 

967.  In  regard  to  the  phraseology  of  the  questions  which  are 
put  to  a  witness,  and  the  language  of  the  answers  returned  by  him 
while  under  examination,  it  is  to  be  observed,  on  the  one  hand, 
that  the  witness  is  in  the  protection  of  the  house ;  that  no  question 
ought  to  be  permitted  to  be  put  to  him  which  is  couched  in  dis- 
respectful terms;  and  that  no  insulting  or  abusive  language  or 
conduct  towards  him  ought  to  be  allowed ;  ^  and,  any  member,^ 
counsel,  or  party,  who  in  examining  a  witness  should  insult  or 
abuse  him,  would  subject  himself  to  the  censure  and  punishment  of 
the  house.  On  the  other  hand,  it  is  the  duty  of  a  witness  to  an- 
swer every  question  in  a  respectful  manner,  both  towards  the  house, 
and  towards  the  member,  party,  or  counsel,  by  whom  he  is  exam- 
ined.3  If  a  witness,  forgetful  of  his  duty  in  this  respect,  gives  his 
answer  in  an  indecorous  or  disrespectful  manner,  the  usual  course 
is  for  the  speaker  to  reprimand  him  immediately,  and  to  caution 
him  to  be  more  careful  for  the  future.^  If  the  offence  is  clearly 
manifest,  the  speaker  will  proceed  at  once  to  reprimand  and  caution 
the  offender ;  if  not,  the  witness  may  be  directed  to  withdi-aw,  and 
the  sense  and  direction  of  the  house  may  then  be  taken  upon  the 
subject.*^ 

968.  In  regard  to  the  course  of  inquiry,  a  distinction  must  be 
made,  corresponding  to  that  by  which  the  different  subjects  of  in- 
vestigation are  distinguished,  namely,  between  inquisitorial  pro- 
ceedings, and  those  which  are  judicial  and  relate  to  private  individ- 
uals. In  the  former,  the  utmost  latitude,  both  as  to  the  form  and 
the  subject-matter  of  the  questions  proposed,  is  allowed ;  the  house 
being  governed  only  by  its  own  discretion,  —  having  reference  to 
the  public  interest,  —  in  permitting  or  restraining  the  course  of  in- 
quiry. The  rule  is  thus  stated  by  Mr.  Wynne :  "  It  was  clear,  that 
the  house  was  at  liberty  to  exercise  the  fullest  discretion  upon 
every  question  which  it  was  proposed  to  ask  of  any  witness  at 
their  bar.     In  a  court  of  justice,  the  parties  had  the  right  to  put  any 

1  Pari.  Reg.  XI.  232,  233,  234.  *  Hans.  (1),  XL  662. 

a  Pari.  Reg.  XIII.  232,  233.  »  Hans.  (2),  IX.  76. 

»  Cav.  Deb.  Can.  170;  Same,  170,  171. 


Chap.  IV.]  witnesses.  385 

question  they  chose.  The  judge  had  only  to  determine  w  hether  it 
was  a  legal  one,  and  if  it  was,  he  could  not  refuse  to  admit  it.  In 
that  house,  the  case  was  widely  different.  There  the  questions 
were  those  of  the  whole  body,  though  proposed  by  an  individual 
member :  there  could  be  no  obligation  upon  any  one  to  consent  to 
a  question  being  put,  which  he  conceived  to  be  irrelevant,  imma- 
terial, or  in  any  way  inexpedient  for  the  public  interest."^  In  the 
course  of  the  inquiry  relative  to  the  conduct  of  the  duke  of  York, 
Mr.  Whitbread  said  that,  "  The  committee  were  not  fettered  by 
settled  forms  or  principles  of  evidence,  as  was  the  case  in  the  courts 
below.  If  once  such  a  limit  was  imposed  upon  the  investigations 
of  the  house  of  commons,  there  was  an  end  to  the  inquisitorial 
power  of  parliament."  ^  And  Sir  Samuel  Romilly  said  that,  "  The 
object  was  very  different  from  that  of  courts  of  justice,  and  therefore 
the  house  could  not  be  bound  by  the  same  ties."  ^ 

969.  In  reference  to  judicial  and  private  proceedings,  it  may  be 
stated  generally,  that  the  two  houses  of  parliament  consider  them- 
selves governed  by  the  same  rules  of  evidence,  which  prevail  in  the 
ordinary  courts  of  justice,  so  far  as  they  are  applicable,  or  by  analo- 
gous rules,  according  to  the  nature  and  subject  of  each  particular 
inquiry.^  In  applying  these  rules,  the  spirit  rather  than  the  letter, 
and  the  substance  rather  than  any  technical  form,  will,  of  course, 
be  regarded.'^ 

970.  The  following  cases  wiU  serve  as  examples  of  the  mode  in 
which  witnesses  and  evidence  are  dealt  with,  in  inquiries  of  a  pri- 
vate character.  On  a  hearing  at  the  bar  of  the  lords,  against  a 
private  bill,  a  ^\itness  being  called,  who  had  signed  a  petition 
against  the  bill,  it  was  stated  by  Lord  Mansfield  to  be  a  rule  of 
parliament,  that  no  person  was  competent  to  testify  as  a  witness  in 
a  hearing  upon  a  private  bill,  who  had  signed  a  petition  against 
the  bill,  either  in  whole  or  in  part ;  not  because  he  was  a  party,  nor 
because  he  might  have  an  eventual  interest  in  the  fate  of  the  bill, 
but  simply  because  he  had  signed  a  petition  against  it ;  ^  and,  in  the 
house  of  commons,  a  witness  against  a  private  bill  was  rejected  as 
incompetent,  on  the  ground  that  he  had  distributed  to  members  of 

1  Hans.  (2),  IX.  493.  ner  of  proceeding  of  the  house  in  its  inquisi- 

2  H;ms.  (1),  XII.  585.  torial  capacity. 

8  Hans.  (1),  XII.  853.     This  inquiiy,  which  *  A  fundamental  rule  is,  that  witnesses  can 

was  considered  as  altogether  of  a  public  char-  only  be  examined  to  matters  and  things  which 

ncter,  and  was   conducted   entirely  without  are  relevant  to  the  allegations  in  the  petition; 

the  aid  of  counsel,  and  in  the  absence  of  the  Comm.  Jour.  XLI.  839;  Same,  L.  176. 

individual   whose   official  conduct   was    in-  *  Hans.  (2),  V.  152. 

volved,  affords  a  good  illustration  of  the  man-  •  Pari.  Reg.  XIX.  336,  337. 

33 


386  LEGISLATIVE  ASSEMBLIES.  [PaRT    V. 

the  house  a  printed  paper,  on  behalf  of  himself  and  others,  against 
the  bill ;  ^  and  another  on  the  ground  that  he  had  subscribed  a  sum 
of  money  in  support  of  one  of  the  petitions  against  the  bill;^  so 
persons  who  were  petitioners  against  an  election,  being  offered  as 
witnesses  to  controvert  the  election,  and  objected  to  on  the  ground 
that  they  had  signed  the  indenture  of  return,  were  rejected;^ 

971.  In  reference  to  judicial  proceedings,  in  the  way  of  legisla- 
tion,* the  bill  of  pains  and  penalties,  on  which  the  trial  of  the  queen 
took  place,  affords  a  good  example.  In  this  case,  all  the  rules  of 
evidence,  by  which  courts  of  justice  regulate  their  proceedings, 
were  adhered  to.''  So  on  the  motion  for  an  address  to  the  crown 
for  the  removal  of  Mr.  Justice  Fox  from  office,  on  wdiich  wit- 
nesses were  examined,  and  the  inquiry  conducted  by  counsel  on 
both  sides,  a  witness  being  called  to  testify  to  the  charges  in  the 
address,  and  being  objected  to  on  the  ground  that  he  was  one  of 
the  petitioners  against  the  judge,  the  house  considered  the  witness 
competent,  by  analogy  to  the  practice  of  the  judicial  courts,  in 
which  the  evidence  of  a  prosecutor  is  ahvays  admissible.^ 

972.  The  two  houses  pay  that  respect  to  each  other's  proceed- 
ings, that  a  witness,  who  has  been  examined  in  one  house,  will  not 
be  allowed,  on  his  examination  in  the  other,  to  testify  to  what 
passed  on  his  first  examination  ;'^  and  this  rule  seems  applicable  to 
every  kind  of  inquiry,  whether  public  or  private. 

973.  When  an  examination  takes  place  before  the  house,  or  a 
committee  of  the  whole  house,  witnesses  are  usually  required  to 
stand  at  the  bar  uncovered,  while  giving  their  evidence ;  unless, 
from  fatigue  or  sickness,  or  other  cause,  they  should  be  unable  to 
stand,  in  which  case,  they  are  allowed  to  sit.^  But  this  rule  does 
not  apply  to  members  of  the  house,  who  are  always  examined  in 
their  places,  standing  (unless  sick  or  infirm)  and  uncovered ;  nor  to 
peers,  lords  of  parliament,  the  judges,  and  the  lord  mayor  of  Lon- 
don, w^ho,  w'hen  attending  as  witnesses,  have  chairs  placed  for  them 
within  the  bar,  and  are  introduced  by  the  sergeant-at-arms.  Peers 
sit  down  covered,  but  rise  and  answer  all  questions  uncovered. 
The  judges  and  the  lord  mayor,  though  provided  with  chairs,  and 
informed  by  the  speaker  that  there  are  chairs  to  repose  themselves 
upon,  do  not  sit,  but  only  rest  with  their  hands  upon  the  chair 
backs.^ 

1  Comra.  Jour.  XXXV.  382.  «  Hans.  (1),  V.  167. 

«  Comm.  Jour.  XXXV.  589.  '  Comm.  Jour.  XXXII.  113. 

8  Comm.  Jour.  XVIII.  181.  8  Hans.  (1),  XII.  436,  985. 

<  See  Pari.  Reg.  Vm.  (2),  291.  "May,   317;    Hatsell,  U.   149.    The  latter 

'  Hans.  (2),  V.  152.  author,  who  minutely  describes  all  these  forms, 


Chap.  IV.]  witnesses.  387 

974.  According  to  the  strict  rales  of  proceeding,  as  already 
explained,  there  are  three  modes  of  examining  witnesses,  namely : 
first,  upon  interrogatories  previously  agreed  upon  by  the  house  and 
put  to  the  witness  by  the  speaker;^  second,  upon  interrogatories 
framed  at  the  time  of  the  examination  by  the  speaker,  or  suggested 
to  him  by  individual  members,  and  put  by  him  to  the  witness  ;  and, 
third,  upon  interrogatories  framed  at  the  time  and  put  directly  to 
the  witness  by  individual  members. 

975.  In  regard  to  interrogatories  of  the  first  kind,  —  although 
optional  with  the  house  to  proceed  with  the  inquiry  or  not  as  it  is 
to  proceed  with  every  order  of  the  day,  —  it  would  seem,  when  the 
examination  has  once  been  entered  upon,  that  it  is  then  too  late 
for  particular  interrogatories  to  be  withdrawn,  or  to  be  objected  to 
in  the  usual  way  on  the  part  of  the  members ;  yet  it  is  doubtless 
competent  for  the  house  to  expunge  a  particular  interrogatory,  if 
it  thinks  proper,  or  to  direct  that  it  shall  not  be  put. 

976.  When  the  second  mode  is  adopted,  the  theory  of  the  pro- 
ceeding supposes,  that  the  questions  as  they  are  propounded  to  the 
witness  are  agreed  upon  and  sanctioned  by  the  house,  though 
without  the  formality  of  a  motion  and  question ;  in  the  same  man- 
ner, in  fact,  as  if  there  had  been  a  motion  made  that  the  particular 
question,  stating  it,  be  put  by  the  speaker  or  chairman  to  the  wit- 
ness, and  the  house  on  question  had  agreed  to  the  motion  ;  and,  it 
seems,  that  it  is  the  right  of  each  individual  member  to  require,  that 
every  question  shall  be  agreed  upon  and  put  in  this  manner.- 

977.  Where  the  strict  form  is  thus  observed,  every  motion  for  a 
question  stands  precisely  in  the  situation  of  all  other  motions,  sub- 
ject to  be  withdrawn  by  the  mover  with  or  without  the  leave  of  the 
house,  and  to  be  disposed  of  by  amendment  or  otherwise.  WTien 
agreed  to  by  the  house  or  committee,  it  is  no  longer  the  question  of 
the  member  by  whom  it  was  moved,  and  subject  to  his  control,  but 
of  the  house  or  the  committee,  by  whom  it  may  of  course  be 
expung(^d  or  ordered  not  to  be  put. 

978.  When  the  questions  are  suggested  by  individual  members, 
and  put  to  the  witness  by  the  speaker,  without  the  formality  of  a 
motion  and  question,  the  proceeding  is  by  general  consent,  which 
is  of  course  presumed  so  long  as  no  one  objects.  Until,  therefore, 
the  question  has  been  actually  put  to  the  witness  by  the  speaker,  it 

does  not  ncqunint  us  with  the  reasons  or  ori-  called,  the  clerk  was  ordered  to  stAnd  by  liim, 

gin  ol"  tills  soiiiewhrtt  curious  distinction  be-  and   repeat   tlie   questions  that  were  put   to 

tween  silting  on,  and  reposing  upon,  a  chair.  him.     Hans.  (1),  IX.  974. 

'  A   witness,   who    was    very    deaf,   being  *  Hans.  (2),  IX.  524,  526. 


388  LEGISLATIVE    ASSEMBLIES.  [PaRT  V 

is  undoubtedly  competent  to  the  member  suggesting  the  question 
to  withdraw  it,^  or  for  any  other  member  to  object  to  the  ques- 
tion, and  to  require  it  to  be  agreed  upon  and  put  according  to  the 
regular  form  of  proceeding. 

979.  Where  the  usual  practice  is  adopted  of  allowing  the  mem- 
bers to  put  their  questions  directly  to  the  witness,  without  being 
previously  agreed  to  on  motion,  or  even  suggested  to  the  speaker 
to  be  put  by  him,  the  whole  proceeding  is  by  general  consent ;  and, 
consequently,  may  be  objected  to  by  any  member,  and  the  strict 
rule  enforced,  at  any  time  before  the  question  is  actually  answered 
by  the  witness.  Until  that  time,  therefore,  the  member  proposing 
the  question  may  withdraw  it,  or  it  may  be  objected  to  by  any 
other  member.^ 

980.  If,  while  a  witness  is  under  examination  at  the  bar,  any 
member  wishes  to  address  the  house,  or  to  make  a  motion,  either 
in  reference  to  the  business  in  hand,  or  to  any  other  subject,  or  if  it 
becomes  necessary  to  take  the  sense  of  the  house  on  any  matter, 
the  witness  is  directed  to  withdraw,^  without  any  motion  or  vote 
for  the  purpose,  but  simply  in  pursuance  of  the  right  of  each  indi- 
vidual member  to  have  the  house  cleared  of  strangers,  whenever  he 
pleases.'*  When  the  occasion  for  the  withdrawal  of  the  witness  is 
at  an  end,  a  motion  must  then  be  made,  and  a  question  put  for 
calling  him  in  again.  The  withdrawal  of  a  witness  is  usually 
effected  by  individual  members  calling  out  to  withdraw.  The 
more  proper  course  is  for  the  speaker,  at  the  request  of  some 
member,  or  on  his  own  suggestion,  to  direct  the  witness  to  with- 
draw.^ 

981.  Where  the  questions,  upon  which  a  witness  is  to  be  exam- 
ined, are  settled  by  the  house,  in  either  of  the  modes  above 
described,  every  member  has  an  opportunity,  before  a  question  is 
put,  to  object  to  it,  and  to  have  his  objection,  considered,  and  the 
whole  matter  decided  by  the  house.  Where  the  members  are 
allowed  to  examine  the  witnesses  directly,  without  the  intervention 
of  the  house  or  the  speaker,  other  members  have  no  opportunity  to 

1  Hans.  (2),  XI.  523.  and    parties,  actually  to  withdraw  fi-om  the 

*  The  rules  of  proceeding,  as  laid  down  in  house,  and  retire  into  the  lobby,  or  witnesses 

these  paragraphs,  seem  to  be  the  fair  result  of  room,  in  all  cases,  but  only  to  withdraw  from 

what  is  said  in  debate,  and  of  the  proceedings  the   bar  a  few  feet.      Hans.  (1),  VIII.  1063, 

in  the  examination  of  witnesses,  in  the  several  10C4. 

inquiries  of  public  importance,  reported  in         *  Cav.  Deb.  I.  128, 129, 131 ;  Cav.  Deb.  Can 

the  ])ublished  debates.  123. 
8  It  does  not  seem  to   be  the  practice,  in         ^  Cav.  Deb.  Can.  123. 

modem  times,  to  require  witnesses,  counsel, 


Chap.  IV.]  witnesses.  389 

object,  until  the  questions  are  actually  propounded.  Questions  are 
usually  objected  to  by  members  for  much  the  same  reasons  with 
those  offered  by  parties  or  counsel,  as,  for  examj)le,  that  the  ques- 
tion is  irrelevant,'  or  that  the  mode  of  interrogati<m  is  impro})er,-  or 
that  the  question  relates  to  mere  matter  of  opinion,''  or  hearsay.* 
But  members  are  not,  of  course,  confined  to  objections  of  this 
description.  When  questions  are  thus  objected  to, 'the  witness  is 
withdrawn,  and  the  house  proceeds  to  consider  the  matter,  either 
formally,  upon  some  appropriate  motion  being  made,  as  that  the 
speaker  put  the  question,  or  that  the  question  be  not  put,  or  in  an 
informal  manner.  When  the  house  has  come  to  some  conclusion 
upon  the  subject,  the  witness  is  again  called  in  and  Ihe  examina- 
tion proceeds. 

982.  Whatever  form  of  examination  may  be  adopted,  the  proper 
time  for  a  witness  himself  to  object  to  a  question,  is  when  it  is  put 
to  him.  When  a  witness  is  unwilling  to  answer  any  question,  he 
should  state  the  reasons  why  he  declines,  or  desires  to  be  excused 
from  answering,  and  should  respectfully  appeal  to  the  chair,  whether, 
under  the  circumstances,  or  for  the  reasons  stated  by  him,  he  ought 
to  answer.^  He  is  then  directed  to  withdraw,  and  the  matter  is 
considered  by  the  house,  whether  and  in  what  form  the  question 
shall  be  answered.  When  the  point  is  settled,  the  witness  is 
recalled,  and  the  speaker  informs  him,  that  it  is  or  is  not  the  pleasure 
of  the  house  that  he  should  answer  the  question.*^  The  same  pro- 
ceedings take  place  when  the  house  is  in  a  committee  of  the  whole. 
When  the  decision  is,  that  the  question  shall  be  answered,  and  the 
witness  is  recalled  for  that  purpose,  the  speaker  or  chairman  informs 
him,  that  he  wall  be  entitled  to  the  protection  of  the  house,  against 
the  consequences  of  giving  his  testimony,  and  that  under  such 
protection,  he  is  bound  to  answer  all  questions  which  the  house  or 
committee  should  see  fit  to  put  to  him." 

983.  A  witness  cannot  excuse  himself  from  answering,  on  the 
ground  that  he  may  thereby  subject  himself  to  a  civil  action,  or 
expose  himself  to  a  criminal  prosecution,^  or  because  he  has  taken 
a  judicial  oath,  as  a  gi-and-juror,  for  example,  or  a  voluntary  oath, 
as  a  freemason  or  an  orange-man,  not  to  disclose  the  matter  about 

»  H:ins.  (1),  Xn.  402.  '  Hans.  (2),  XVIII.  974. 

"  H:iiis.  (1),  XII.  277.  *  In  the  house  of  lords,  there  appears  to  be 

*  H;nis.  (1),  XII.  589.  some  exception  to  the  general  rule  with  refer- 

♦  Hans.  (1),  XII.  584.  ence  to  questions  of  this  description.    See 
6  H-.m^;.  (1),  XII.  396,  478.  post,  ^  1005. 

•  Hans.  (1),  XII.  543,  590. 

33* 


390  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

which  he  is  required  to  testify ;  ^  or  because  the  matter  was  a 
privileged  communication  to  him,  as  where  an  attorney  is  called 
upon  to  disclose  the  secrets  of  his  client  j^  or  on  the  ground, 
that  he  is  advised  by  counsel,  that  he  cannot  do  so,  without  in- 
curring the  risk  of  criminating  himself,  or  exposing  himself  to  a 
civil  suit.2 

984.  When  a  question  has  been  propounded  to  a  witness,  with- 
out objection,  or,  if  objected  to,  has  been  directed  by  the  house  to 
be  put  or  answered,  it  is  then  the  duty  of  the  witness  forthwith  to 
answer  it  directly,  plainly,  fully,^  and  truly,  according  to  the  best  of 
his  knowledge,''  and  in  a  respectful  manner,  both  towards  the  house 
and  the  members  individually.  If  the  witness  appears  to  be  un- 
mindful or  ignorant  of  his  duty,  or  manifests  a  disposition  to  evade 
its  performance,  it  is  the  business  of  the  speaker  to  admonish  him,^ 
that  it  is  his  duty  to  answer  the  question,  or  to  answer  it  directly, 
or  fully,  or  truly,  or  to  conduct  himself  respectfully,''  as  the  case 
may  be ;  and,  if  necessary,  to  inform  the  witness,  that  the  house 
is  armed  with  power  to  enforce  obedience  to  its  commands,  and 
to  jiuiiish  him  with  great  severity  for  any  disobedience,  misbehavior, 
or  contempt.^ 

985.  Witnesses  are  called  in,  one  at  a  time,  on  motion  and  ques- 
tion, as  they  are  wanted,  and  withdraw  by  the  direction  of  the 
speaker,  when  they  have  gone  through  with  their  evidence.  It  is 
not  in  strictness  regular  for  any  of  the  witnesses  to  remain  in  the 
house  during  the  examination  of  any  other  witnesses;'^  but  this 
rule  is  dispensed  with,  whenever  it  is  necessary  to  confront  two  or 
more  witnesses  together ;  ^^  in  which  case,  the  witnesses  may  be 
called  in  to  give  their  evidence  in  the  first  instance,  in  each  other's 
presence,  or,  after  having  testified,  may  be  examined  over  again,  in  • 
the  presence  of  each  other,  to  the  same  subjects. 

986.  In  respect  to  the  order,  in  which  witnesses  are  to  be 
examined,  it  appears  to  be  customary  to  conform  to  the  general 
practice  of  courts  of  justice,  so  far  as  that  practice  is  applicable, 
subject  to  such  changes  and  modifications,  as  the  convenience  of 
the  house  or  of  the  members  managing  the  examination,  or  of  the 

»  Hans.  (2),  IX.  113;  Same,  119, 120;  Same,  "  Hans.  (1),  XIL  450,  831. 

493.  '  Hans.  (1),  XH.  538,  542,  600;  Same,  XL 

a  Hans.  (2),  XVIU.  968,  969,  970,  971,  972,  642;  Grey,  HI.  102. 

973,  974.  8  Hans.'  (1),  XIL  590,  591,  592, 

8  Hans.  (1),  VL  353,  359.  »  Hans.  (1),  IX.  23. 

*  Hans.  (1),  XIL  542,  590.  lo  Comm.  Jour.  XII.  83,  88;  Same,  XVIIL 

6  Hans.  (1),  XIL  283^  286,   449,   534,   541,  752;  Hans.  (1),  XH.  749;  Same,  (2',  IX.  487. 
542,  831. 


Chap.  IV.]  witnesses.  391 

witnesses,  may  require.  Thus,  the  select  committee  on  the  aboli- 
tion of  the  slave-trade,  in  1790,  while  hearing  the  witnesses  in  favor 
of  the  abolition,  were  directed  by  the  house  to  take  the  testimony 
of  two  witnesses  on  the  other  side,  who  were  under  the  necessity 
of  soon  leaving  the  kingdom;  it  appearing  to  the  house,  that  the 
examination  of  those  witnesses,  out  of  course,  would  not  be  attended 
with  any  inconvenience  to  the  several  petitioners  in  favor  of  the 
abolition,  who  were  then  in  the  course  of  examining  their  witnesses.^ 
So  where  a  witness  against  a  biU  was  under  immediate  orders  for 
the  East  Indies,  and  might  probably  be  obliged  to  leave  before  the 
party  could  examine  him,  in  the  ordinary  course,  the  house  allowed 
him  to  be  examined  in  the  then  present  stage  of  the  biU.'-^ 

987.  When  an  examination  of  witnesses  takes  place  in  the  course 
of  any  incpiiry,  either  before  the  house  itself,  or  before  a  committee 
of  the  whole,  or  a  select  committee,  it  is  necessary  that  minutes  of 
the  examination  should  be  taken  and  preserved,  that  is,  that  the 
questions  propounded,  together  with  the  answers  of  the  witnesses, 
and  the  contents  of  letters  and  papers  read  in  evidence,  should  be 
reduced  to  writing  by  the  clerk  of  the  house,  or  some  other,  usually 
a  shorthand  writer,  appointed  and  employed  by  him  for  the  pur- 
pose. When  an  examination  takes  place  before  a  committee  of  the 
whole,  the  minutes  of  the  evidence  are  usually  presented  to  the 
house  from  time  to  time  by  its  order  and  printed;  when  before  the 
house  itself,  the  minutes  being  already  in  the  possession  of  the 
house,  there  is  no  occasion  for  any  such  order.  The  minutes  of  the 
testimony  are  not  entered  on  the  journal,  unless  in  the  form  of  a 
report  from  the  committee,  or  by  the  special  order  of  the  house  ;  but 
they  are  nevertheless  essential  to  be  taken  and  preserved,  as  the 
basis  of  the  further  proceedings  of  the  committee,  where  their  duties 
are  not  confined  to  the  taking  of  the  evidence;  and  until  the  evi- 
dence is  taken  down  no  debate  can  occur  consistently  with  order, 
nor  can  any  motion  be  predicated,  upon  it,  as  it  is  to  the  minutes 
alone,  that  reference  can  be  made  for  these  purposes.^ 

988.  In  select  committees,  which  are  generally  made  use  of  for 
inquiries  in  which  the  examination  of  witnesses  is  necessary,  the 
evidence  is  taken  down  in  shorthand,  and,  in  the  commons,  printed 
daily  for  the  use  of  the  committee.  A  copy  of  his  own  examina- 
tion is  also  sent  to  each  witness  for  his  revision,  with  an  insti-uction, 
that  he  is  at  liberty  only  to  make  verbal  corrections,  and  not  altera- 


1  Comm.Jour.  XLV.  115.  s  Cav.  Deb.  Can.  120;  Pari.  Keg.  XII.  84, 

«  Comin.  Jour.  XXXIX.  143.  35,  36,  37. 


392  LEGISLATIVE    ASSEMBLIES.  [PaRT   V. 

tions  in  substance,  which  can  only  be  effected  by  a  reexamination 
before  the  committee.  Neither  the  members  of  the  committee,  for 
whose  immediate  use  the  minutes  are  printed,  nor  the  witnesses  to 
whom  copies  are  sent  for  revision,  are  at  liberty  to  publish  any  por- 
tion of  the  evidence,  until  it  has  been  reported  to  the  house.^ 

989.  In  the  ordinary  mode  of  examination,  it  may  happen,  that 
a  question,  which,  on  being  objected  to,  is  decided  to  be  improper 
or  inadmissible,  has  been  already  inserted  in  the  minutes.  When 
such  is  the  case,  the  question  is  to  be  expunged.^  So  an  answer, 
which,  properly  spealdng,  is  not  evidence  and  ought  not  to  have 
been  received  as  such,  may  be  expunged  on  motion  and  question 
for  the  purpose ;  ^  and,  in  like  manner,  if  a  question  is  incorrectly 
taken  down  by  the  shorthand  writer,  it  may  be  corrected,  even 
after  the  answer  has  been  given  and  taken  down.^ 

990.  K  in  the  course  of  the  examination  it  becomes  necessary  to 
refer  to  the  testimony  previously  given  by  any  of  the  witnesses,  as, 
for  example,  to  reexamine  the  witness  himself  with  reference  thereto, 
or  to  confront  him  with  other  witnesses,^  such  evidence  is  to  be  read 
by  the  clerk  from  the  minutes,  and  to  be  entered  as  read  in  the 
minutes.'^ 

991.  If  a  witness  desires  to  correct  any  thing  in  his  evidence,  he 
may  be  permitted  to  do  so,  on  expressing  his  desire  to  that  effect 
before  leaving  the  bar.  Where  some  time  has  elapsed,  the  rule 
seems  to  be  different.  In  the  examination  before  a  committee  of 
the  whole,  of  the  East  India  charges  against  Warren  Hastings, 
Sir  Elijah  Impey  having  testified  on  the  5th  of  February,  applied 
to  the  committee  when  they  next  sat,  which  was  on  the  8th,  to  be 
called  to  the  bar,  for  the  purpose  of  delivering  in  a  written  paper 
"  containing  an  explanation  and  correction  of  some  few  of  his 
answers  when  last  examined."  The  committee,  after  debate, 
refused  the  request."  If  his  examination  has  been  closed,  he  must 
signify  his  wish  through  the  speaker,  or  chairman,  or  some  member,^ 
in  order  that  a  motion  may  be  made,  that  he  may  be  called  in  to 
correct  a  mistake  in  his  evidence.^^  If  the  witness  is  a  member,  he 
can  of  course,  make  the  request  for  himself.  The  only  proper  time, 
for  allowing  a  witness  to  correct  a  mistake  in  his  evidence,  is  regu- 

1  May,  304.  »  Hans.  (2),  IX.  487. 

2  Hans.  (1),  Xn.  7.52,  858.  6  Hans.  (1),  XH.  422,  572,  747,  748. 
8  Hans.  (1),  XH.  673;  Coram.  Jour.  XXXIX.  "  Pari.  Keg.  (2),  XXL  106,  107. 

143.  »  Pari.  Reg.  (2),  XXL  106,  107. 

«  Hans.  (1),  xn.  341.  »  Hans.  (11,  XH.  616. 


Chap.  IV.]  witnesses.  393 

larly  when  the  house  or  committee  is  proceeding ^^-ith  tho  inquiry;^ 
8o  that  if  the  inquiry  has  been  closed,  the  only  mode,  in  which  a 
witness  can  be  allowed  to  correct  a  mistake  in  his  (evidence,  would 
seem  to  be  by  reviving  and  opening  the  inquiry  for  that  purpose. 

992.  The  mode  of  examination,  described  in  the  preceding  para- 
graphs, is  what  takes  place  when  the  inquiry  is  conducted  by 
members.  When  the  examination  is  conducted  by  the  parties 
themselves,  or  by  their  counsel,  questions  are  put  by  them  to  the 
witnesses,  and  objections  are  taken  and  argued  to  the  house  or  the 
committee  in  the  same  manner  as  in  the  ordinary  courts  of  justice. 
Members  also  may  participate  in  the  examination,  and  may  put 
questions,  and  make  objections,  in  the  same  manner  as  when  the 
inquiry  is  conducted  exclusively  by  them.  Where  parties  and 
counsel  are  present  at  the  examination,  whether  conducting  it  or 
not,  they  must  all  regularly  withdraw,  on  both  sides,  whenever  the 
course  of  proceeding  requires  the  witnesses  to  be  excluded. 

993.  Some  points  of  diflerence  between  the  form  of  proceeding 
in  the  house,  and  in  a  committee,  require  notice.  When  an  exami- 
nation takes  place  at  the  bar  of  the  house,  the  house  has  full  power 
to  proceed  at  once  and  to  determine  finally  upon  every  emergency 
that  may  arise ;  as,  for  example,  to  commit  a  witness,  counsel,  or 
party,  for  contempt,  —  to  order  the  attendance  of  new  witnesses 
forthwith,  —  or  to  proceed  to  any  collateral  inquiry  they  may  think 
proper.  In  a  committee,  even  of  the  whole,  the  case  is  otherwise ; 
as  a  committee  has  no  power  except  what  is  specially  conferred 
upon  it  by  the  house.  Hence,  a  committee  is  not  at  liberty  to 
punish  for  a  contempt,  or  to  take  any  other  step  out  of  the  limits 
of  the  authority  conferred  upon  it ;  but  only  to  report  the  special 
matter  to  the  house,  to  be  there  considered  and  determined  upon. 
Such  special  matter  may  be  reported  whilst  the  examination  is  pro- 
ceeding, or  at  its  close,  as  may  be  necessary  or  convenient.  A 
committee  of  the  whole,  if  it  reports  specially,  in  the  course  of  the 
examination,  may  make  the  report  either  when  it  reports  progress 
at  the  close  of  its  daily  sitting,  or,  if  necessary,  it  may  rise  and 
make  the  report  immediately.  In  the  latter  case,  when  the  report 
has  been  received,  and  the  house  has  proceeded  therewith  in  such 
manner  as  it  may  think  proper,  the  house  again  resolves  into  the 
committee,  and  the  examination  is  resumed  at  the  point  where  it 
was  broken  off.  A  select  committee,  if  authorized  to  sit  whilst  the 
House  is  sitting,  but  not  otherwise,  may  make  a  special  report,  in 

iHans.  (1),  XII.  327. 


394  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

the  same  manner.  A  committee  of  the  whole  may  also,  it  seems, 
when  necessary  in  support  of  its  own  proceedings,  give  orders  for 
the  taking  into  custody  of  any  person  guilty  of  a  contempt.  Thus, 
when,  in  the  course  of  the  inquiry  into  the  conduct  of  the  duke  of 
York,  before  a  committee  of  the  whole,  it  appeared  that  a  person, 
wathin  the  precincts  of  the  house,  had  been  tampering  with  one  of 
the  witnesses  in  attendance,  the  committee  rose,  and  the  house  was 
resumed,  for  the  purpose  of  ordering  the  offender  into  custody  ;  but, 
in  the  proceedings  which  ensued  the  speaker  stated,  "  that  it  would 
have  been  competent  for  the  committee,  in  support  of  their  own 
proceedings,  to  order  the  serge ant-at- arms  to  take  into  custody  any 
person  wdthout  delay.  The  first  duty  of  the  chairman  [the  com- 
mittee] would  then  have  been  to  report  progress,  and  when  the 
person  was  actually  in  custody,  to  move  that  he  be  committed,"  ^ 

994.  As  aU  the  proceedings  of  a  committee  are  ultimately  to 
be  revised  by  the  house,  it  is  competent  for  the  committee,  if  it 
thinks  proper,  while  an  examination  is  proceeding,  to  ask  the 
instruction  of  the  house,  by  means  of  a  special  report,  with  refer- 
ence to  the  questions  of  evidence,  which*  are  within  its  authority 
to  decide.  On  such  a  report  being  made,  the  house  proceeds  to 
consider  the  question  proposed  to  it,  and  to  instruct  the  committee 
agreeably  to  its  request.  Thus,  where  one  of  the  members  of  a 
committee,  to  whom  a  private  petition  was  referred,  reported  from 
the  committee,  "  that  they  had  directed  him  to  move  that  the  house 
will  please  to  give  directions,  whether  affidavits,  taken  in  the  planta- 
tions, can  be  read  before  the  said  committee  or  not ; "  a  motion  was 
then  made,  that  the  committee  have  leave  to  read  the  depositions 
in  question,  which  passed  in  the  negative.^  So,  where  one  of  the 
members  of  a  select  committee  acquainted  the  house,  "  that  he  was 
directed  by  the  committee  to  report  to  the  house  the  special  matter, 
upon  which  a  witness  was,  in  the  said  committee,  resolved  to  be 
an  incompetent  witness,"  and  he  read  the  report  accordingly ;  it 
was  thereupon,  ordered,  that  it  be  an  instruction  to  the  committee, 
to  admit  the  evidence  of  the  witness  in  question,  as  a  competent 
witness.'^ 

995.  A  select  committee  may,  also,  in  its  report,  present  the 
questions  of  evidence  which  it  has  decided,  in  such  a  manner,  as  to 
enable  the  house  to  revise  its  decision  thereon.  In  such  a  case,  the 
committee  reports  the  matter  "  as  it  appears  to  them,"  upon  the 
evidence,  together  with  a  statement  of  the  questions  of  evidence 

,   1  Huns.  (1),  XII.  461.  s  Comm.  Jour.  XXX!  V.  202. 

2  Comm.  Jour.  XIII.  769. 


Chap.  IV.]  witnesses.  395 

decided.  If  the  decision  of  the  committee  is  not  satisfactory  to  the 
house,  the  proper  course  is  to  recommit  the  report  to  the  com- 
mittee.^ 


Section  IV.     Of  the  Privileges  of  Witnesses. 

996.  In  order  to  enable  persons,  whose  testimony  is  wanted 
before  either  house  of  parliament,  or  a  committee,  to  giwc.  their 
attendance,  and  to  testify  fully  and  freely  to  all  matters  and  things 
within  their  knowledge,  certain  privileges,  analogous  to  those  of 
members,  are  attributed  to  them.  These  privileges  are  of  three 
kinds :  Jirst,  freedom  from  arrest  in  coming,  staying,  and  returning ; 
second,  protection  against  the  consequences  of  the  disclosures, 
which  they  may  make  in  their  evidence ;  and,  third,  protection 
against  personal  violence,  or  threatened  injury,  in  consequence  of 
their  being  witnesses. 


Akticle  I.   Freedom  from  Arrest,  in  coming-,  staying-,  and  returning. 

997.  This  privilege,  which  is  similar  in  its  nature  and  extent  to 
the  analogous  privilege  enjoyed  by  members,  is  as  much  the  privi- 
lege of  the  house  itself,  as  of  the  persons  who  are  more  immediately 
the  subjects  of  it ;  or,  as  it  was  expressed  in  the  resolutions  of  the 
commons,  March  8,  1688,  "  it  is  the  midoubted  right  of  this  house, 
that  all  witnesses  summoned  to  attend  this  house,  or  any  commit- 
tees appointed  by  it,  have  the  privilege  of  this  house,  in  coming, 
staying,  and  returning."-  This  privilege  is  of  a  tw^ofold  character: 
— first,  it  entitles  witnesses  to  protection  against  the  danger  of 
arrest ;  and,  second,  if  arrested  to  be  discharged. 


1.   Protection. 

998.  In  order  to  entitle  a  witness  to  the  protection  of  the  house, 
it  is  not  necessary  that  he  should  have  been  summoned  by  a  party, 
or  ordered  by  the  house,  to  attend ;  it  is  enough,  if  he  is  a  material 
witness,  and  is  wUling  and  about  to  attend,  or  is  in  attendance,  as 
such  ;  and  that  he  desires  to  have  the  protection  of  the  house.  If 
a  witness  has  been  summoned  to  attend,  in  virtue  of  a  summons 

1  Coram.  Jour.  XX.  679.    See  also  Same,         «  Comm.  Jour.  X.  45. 
XXV.  133.    Such  a  report  is  equivalent  to  a 
report  in  the  alternative. 


396  LEGISLATIVE  ASSEMBLIES.  [PaRT    V. 

issued  by  ihe  house,  or  by  a  committee  authorized  to  summon  wit- 
nesses, on  behalf  of  a  party  interested,   or  has  been   directed  to 
attend  by  an  order  of  the  house,  there  can  be  no  question,  that  he 
is  entitled  to  the  protection  of  the  house,  if  he  desires  it.     In  other 
cases,  it  \s'ill  be  necessary  to  satisfy  the  house  by  proper  evidence, 
that  the  witness  is  material,   and   is  willing  to   attend.     When, 
therefore,  it  is  made   satisfactorily  to  appear  to  the  house,  upon 
the  petition  of  the  party  interested,^  or  of  the  witness   himself; 
or   upon  the  statement  of   a  member;    or    upon    the   report    or 
application  of  a  committee ;    that  a   particular  person   is  a  ma- 
terial witness  in  some   proceeding  or  inquiry  before    the  house; 
about   to    attend,    attending,   or  returning;    and  is  in  danger  of 
an  arrest,  unless   he  have  the  privilege  of  the   house;    an  order 
will  thereupon  be  made,  that  such  witness  have  the  protection  of 
the  house,  in  coming,  staying,  and  returning,  in   order  to  give  his 
evidence.'-     Sometimes  a  general  resolution  is  agreed  to,  that  aU 
such  witnesses  as  are  necessary  with  reference  to  a  particular  mat- 
ter, as,  for  example,  an  impeachment,  shall  have  the  protection  of 
the  house,  during  then-  attendance  upon  that  service.'^     A  transcript 
of  the  order,  certified  by  the  clerk  of  the  house,  must,  of  course,  be 
equivalent  to  the  writ  of  protection,  which  is  usually  granted  by 
courts  of  justice. 

2.  Discharge  from  Arrest. 

999.  If  a  person,  entitled  to  the  privilege  of  the  house,  as  a  wit- 
ness, is  an-ested,  either  in  coming,"^  while  attending,-^  or  in  return- 
ing,^ the  house  wiU,  on  the  facts  being  made  satisfactorily  to  ap- 
pear, take  measures  for  the  discharge  of  the  witness  from  custody. 
Sometimes  the  course  of  proceedings  is  to  order  the  officer  who 
•  made  the  arrest  to  attend  the  house  with  his  prisoner,  at  a  time 
appointed  ;^  and  then,  upon  such  attendance,  and  the  facts  appear- 
ing on  examination,  to  order  the  prisoner  to  be  discharged.  Some- 
times the  course  is  to  refer  the  complaint  to  the  committee  of  priv- 
ileges,^ and  to  order  the  discharge  upon  their  report.  The  house 
may,  also,  upon  being  satisfied  of  the  facts,  at  once  order  the  pris- 
oner to  be  released.9  At  the  same  time,  if  the  house  should  judge 
proper,  the  persons  making  or  concerned  in  the  arrest  may  be  pun- 
ished, as  for  a  contempt. 

1  Lords'  Journals,  XXV.  625.  »  Comm.  Jour.  VIII.  525. 

2  Comm.  Jour.  IX.  366;   Lords'  Jour.  IV.         «  Coram.  Jour.  XH.  364. 
143;  Same,  XXV.  625.  '  Comm.  Jour.  XII.  364,  610. 

«  Comm.  Jour.  XIII.  521.  •       «  Comm.  Jour.  IX.  20. 

*  Comm.  Jour.  IX.  20.  »  Comm.  Jour.  VIII.  525 ;  Same,  IX.  72. 


Chap.  IV.]  witnesses.  397 

1000.  If  a  witness  should  be  arrested  on  some  criminal  charge, 
against  which  the  privilege  of  the  house  does  not  extend ;  or  if, 
being  arrested  in  a  civil  suit  or  proceeding,  the  house  should  not  be 
immediately  satisfied  that  he  was  entitled  to  privilege ;  ^  the  officer 
having  the  witness  in  custody  may  be  ordered  to  bring  him  in  cus- 
tody to  the  house  or  committee,  before  whom  his  evidence  is  want- 
ed, provided  he  has  not  already  been  examined. 


Article  II.     Protection  of  a  Witness  against  the  Consequences  of 
the  Disclosures  made  by  him  in  his  Evidence. 

1001.  It  has  already  been  seen,  that  a  witness  before  either 
house  of  parliament  cannot  excuse  himself  from  answering  any 
question  that  may  be  put  to  him,  (with  a  single  exception  presently 
to  be  noticed,)  on  the  ground  that  the  answer  would  subject  him  to 
an  action;  or  expose  him  to  a  criminal  proceeding;  or  be  the 
means  of  divulging  the  secrets  of  his  client  communicated  to  him 
in  professional  confidence  ;  or  be  in  breach  of  a  judicial  oath,  as  a 
grand-jm-or;  or  of  a  voluntary  oath,  as  a  freemason,  or  the  like* 
some  of  which  would  be  sufficient  grounds  of  excuse  in  a  court  of 
justice.  This  difference,  between  proceedings  in  parliament,  and  in 
the  ordinary  courts,  ha-s  been  established  upon  grounds  of  public 
policy,  and  is  considered  to  be  fundamentally  essential  to  the  effi- 
ciency of  a  parliamentary  inquiry.  But  while  the  law  of  parfia- 
ment  thus  demands  the  disclosure  of  the  evidence,  it  recognizes  to 
the  fullest  extent,  the  principle  upon  which  the  witness  is  excused 
from  making  such  disclosure  in  the  ordinary  courts  of  justice,  and 
protects  him  against  the  consequences  which  might  otherwise  re- 
sult from  his  testimony ;  the  rule  of  parliament  being,  that  no  evi- 
dence given  in  either  house  can  be  used  against  the  witness  in  any 
other  place,  without  the  permission  of  the  house,  which  is  never 
granted,  provided  the  witness  testifies  truly .^ 

1002.  The  parliamentary  law  on  this  subject  is  declared  and 
embodied  in  the  following  resolutions  of  the  house  of  commons  of 
May  26,  18i8,  namely :  first,  "  that  all  witnesses  examined  before 
this  house,  or  any  committee  thereof,  are  entitled  to  the  protection 
of  this  house,  in  respect  of  any  thing  that  may  be  said  by  them  in 
their  evidence ; "  and,  second,  "  that  no  clerk  or  officer  of  this  house, 
or  shorthand  writer  employed  to  take  minutes  of  evidence  before 

1  Comm.  Jour.  IX  20.  «  Hans.  (2),  XVIII.  068,  069,  070,  971,  97^ 

073,  974. 

34 


398  LEGISLATIVE  ASSEMBLIES.  [PaRT    V. 

this  house,  or  any  committee  thereof,  do  not  give  evidence  else- 
where, in  respect  of  any  proceedings  or  examination  had  at  the 
bar,  or  before  any  committee  of  this  house,  without  the  special  leave 
of  the  house."  ^  During  the  recess,  it  is  the  constant  practice  for 
the  speaker  to  grant  such  leave,  on  Ihe  appUcation  of  the  parties  to 
a  suit.2 

1003.  It  will  be  observed,  that  these  resolutions  do  not  in  terms 
prohibit  members  from  giving  evidence  of  the  confessions  or  state- 
ments of  a  witness  before  the  house.  This  circumstance  having 
been  alluded  to  in  debate,  Mr.  Speaker  Manners  Sutton  took  occa- 
sion thereupon  to  make  the  following  remarks :  "  Some  expres- 
sions have  fallen  from  the  learned  member,  which  are  so  directly  at 
variance  with  the  first  and  most  important  privileges  of  this  house, 
that  I  feel  it  my  duty,  not  to  allow  them  to  pass  without  notice.  I 
understood  him  to  say,  that  it  might  possibly  happen  that  a  mem- 
ber of  this  house  might  be  required  to  give  evidence  in  a  court  of 
law  of  what  had  passed  within  these  walls.  Now  I  conceive  that 
hardly  any  doubt  can  exist  in  the  mind  of  any  honorable  member, 
that  he  is  not  at  liberty  to  give  evidence  elsewhere  of  what  passes 
here,  without  the  direct,  or,  at  least,  the  implied  permission  of  the 
house.  I  wish  to  state  this  principle  as  broadly  as  possible  ;  for  if 
I  am  mistaken,  it  is  high  time  my  error  should  be  corrected.  At 
present,  I  certainly  conceive,  that  on  the  privilege  of  preventing 
what  passes  here,  from  being  communicated  elsewhere,  vitally  de- 
pends the  dignity  and  the  rights  of  this  house.  No  honorable 
member  who  hears  what  passes  within  these  walls  (and  no  other 
person  has  a  right  to  hear  it)  can  be  required  or  allowed,  to  give 
evidence  in  a  court  of  justice  touching  the  matter  which  he  has  so 
heard."  ^ 

1004.  If  a  witness  is  thus  sufficiently  protected,  so  far  as  the 
officers  and  members  of  the  house  are  concerned,  there  yet  seems 
to  be  nothing  in  the  law  or  practice  of  parliament,  which  prevents 
other  persons  (reporters,  for  example,)  accidentally  or  perhaps  even 
officially  present,  if  not  under  the  control  of  the  house,  and  hearing 
the  statement  of  a  witness,  from  testifying  to  such  statement  in  any 
court  of  justice.  If  the  law  of  parfiament  does  not  extend  to  such 
persons,  the  only  effectual  mode  of  securing  the  protection  of  a 

1  Comm.    Jour.    LXXIIL    358;    Hans.   (1),  3fercerow,  Starkie,  N.  P.  Cases,  IL  366,  with- 

XXXVIIL  919,  956.    These  resolutions  were  out  previous  leave, 
agreed  to,  on  the  suggestion  of  Mr.  Speaker,         ^  May,  316. 

in  consequence  of  the  sliorthand  writer  hav-         '  Hans.  (2),  XVIII.  968,  969,  970,  971,  972, 

Ing  been  examined  in  the  case  of  The  King  v.  973,  974. 


Chap.  IV.]  witnesses.  399 

witness  would  be,  to  exclude  all  but  members  and  officers  from  the 
house  or  committee  room  during  the  examination ;  or  to  have  re- 
course to  the  expedient,  which  will  be  presently  mentioned,  as 
usually  resorted  to  in  the  house  of  lords. 

1005.  In  the  house  of  lords,  although  the  same  power  clearly  ex- 
ists, to  compel  the  answer  of  a  witness  to  criminate  himself,  and 
altiiough  the  rule  above  mentioned  is  recognized,  namely,  that  evi- 
dence taken  at  the  bar  cannot  be  used  against  a  witness,  yet,  as 
such  evidence  may  lead  to  the  discovery  of  other  evidence,  suffi- 
cient to  convict  them,  the  protection  afforded  by  the  rule  alluded 
to  does  not  seem  to  be  regarded  as  adequate ;  and  it  has  accord- 
ingly been  the  practice  for  many  years,  when  the  evidence  of  such 
witnesses  is  about  to  be  taken,  to  pass  an  act  (which  is  of  course 
agreed  to  by  the  commons)  to  indemnify  them  in  the  fullest  man- 
ner against  the  consequences  of  their  evidence.^ 


Article  III.    Protection  against  Abuse  and  Insult^  Personal  Violence^ 
and  Injury  actual  or  threatened  to  Person  or  Property. 

1006.  The  personal  immunities,  besides  those  already  mentioned, 
to  which  witnesses  are  entitled,  are,  to  be  free  from  all  insulting 
and  abusive  language ;  -  and  from  all  personal  violence ;  ^  and  to  be 
protected  against  any  threatened  violence  or  injury,  either  as  to 
person  or  property ;  ^  on  account  or  by  reason  of  their  attendance 
or  testimony  as  witnesses.  All  conduct  of  this  Idnd  is  regarded 
as  a  contempt  of  the  authority  of  the  house,  and  a  breach  of  its 
privileges,  and,  on  the  fact  being  made  to  appear,  punished  accord- 
ingly. 

1007.  Thus  where  it  appeared  that  one  of  the  witnesses,  before 
a  committee,  had  been  insulted  and  abused,  in  respect  of  the 
evidence  given  by  him  before  the  committee ;  °  where  a  committee 
having  sat  at  the  Fleet  prison,  and  there  examined  some  of  the 
prisoners  as  witnesses,  and  it  appeared  that  the  warden  of  the  prison 
had  cruelly  used  one  of  the  witnesses,  in  consequence  of  the  testi- 


1  Hans.  (2),  XXIII.  1197,  1198.    In  the  year  bill  to  indemnify  snch  witnesses  as  should 

1742,  the  house  of  commons,  in  consequence  testify  truly  before  the  committee;  but   the 

of  the  refusal  of  Paxton  and  other  witnesses  bill  was  rejected  by  the  lords.     See  Comm. 

to  testify  before  the  secret  committee  to  in-  Deb.  XIII.  246 ;  Lords'  Deb.  V.  III.  174. 

quire  into  the  conduct  of  the  earl  of  Oxford,  »  Comm.  Jour.  XVIII.  73,  74,  371. 

notwithstanding  the  severe  punishment   the  »  Comm.  .Tour.  XXI.  247. 

witnesses  received  for  their  conduct,  found  *  Comm.  Jour.  XVI.  535. 

themselves  under  the  necessity  of  passing  a  '  Comm.  Jour.  XVIII.  371. 


400  LEGISLATIVE   ASSEMBLIES.  [PaRT   V. 

mony  given  by  him ;  ^  where  it  appeared,  that  a  party,  whose  con- 
duct was  under  investigation  before  a  committee,  had  used  insulting 
language  towards  one  of  the  witnesses,  and  had  threatened  him 
with  personal  violence,  on  account  of  the  evidence  given  by  him, 
and  in  case  he  should  give  similar  evidence  in  any  further  stage  of 
the  proceedings  ;"-^  the  offenders  were  adjudged  guilty  of  a  breach 
of  the  privileges  of  the  house,  and  committed  to  the  custody  of  the 
sergeant-at-arms. 

1008.  So,  where  a  committee,  while  proceeding  with  the  inquiry 
referred  to  it,  acquainted  the  house,  that  one  of  the  witnesses, 
after  his  examination  before  the  committee,  had  received  a  letter 
informing  him  that  his  life  was  threatened,  and  his  house  threat- 
ened to  be  burnt  down ;  the  house  thereupon  directed  the  sheriffs, 
justices  of  the  peace,  and  other  peace-officers  of  the  county,  to  take 
effectual  measures  for  securing  the  peace  in  the  place  in  question.^ 
So,  where  a  committee  acquainted  the  house,  that  a  witness  before 
them,  who  was  a  private  soldier,  gave  his  evidence  with  great 
reluctance,  as  being  apprehensive  of  ill  usage,  and  of  being  sent 
away,  and  that  the  committee  promised  him  to  lay  the  matter 
before  the  house,  that  he  might  have  their  protection;  it  was  there- 
upon resolved,  that  this  house  will  proceed  mth  the  utmost  severity 
against  any  person  that  shall  threaten,  or  any  way  injure,  or  send 
away,  the  said  witness,  or  any  other  person  that  shall  give  evidence 
to  any  committee  of  this  house.* 


Section  V.    Of  Misconduct  on  the  part  of  Witnesses,  or  other 
Persons,  relative  to  their  Attendance  and  Examination. 

1009.  The  offences,  of  which  witnesses  may  be  guilty,  relative 
to  their  attendance, — such  as  disobedience  of  the  order  or  sum- 
mons for  their  attendance,  keeping  out  of  the  way  to  avoid  service, 
absconding  to  avoid  being  taken  into  custody,  —  having  already 

1  Comm.  Jour.  XXI.  247.  as  embodying  a  rule  of  parliamentary  law. 

«  Comm.  Jour.  LXIV.  223.  The  house  of  commons,  upon  complaint  being 

8  Comm.  Jour,  XX.  355.  made  of  the  censure  of  Dunbar,  resolved, 

*  Comm.  Jour.  XVI.  535.    The  proceedings  "  that  the  presuming  to  call  any  person  to 

in  the  house  of  commons,  in  1733,  relative  to  account,  or  to  pass  a  censure  upon  him,  for 

the  censure  passed  by  the  house  of  repre-  evidence  given   by  such  person  before  this 

sentatives  of  the  province  of  Massachusetts  house,  or  any  committee  thereof,  is  an  auda^ 

Bay,  upon  .Jeremiah  Dunbar,  on  account  of  cious  proceeding,  and  an  high  violation  of  the 

certain  evidence  given  by  him  before  a  com-  privileges  of  this  house."    Comm.  Jour.  XXII 

mittee  of  the  house  of  commons,  were  of  too  145,  146 ;  May,  140. 

oolitical  a  character,  perhaps,  to  be  considered 


Chap.  IV.]  witnesses.  401 

been  incidentally  treated  of,  so  far  as  relates  to  compelling  their 
attendance,  it  only  remains  to  be  observed,  that  all  such  misconduct 
on  the  part  of  a  witness,  if  intentional,  is  also  a  breach  of  the  privi- 
leges of  the  house,  and  a  contempt,  for  which  the  offender  is  usually 
punished  with  great  severity.  If  it  appears,  however,  that  no  inten- 
tional contempt  has  been  committed,  as  where  a  wdtness  neglects 
to  attend,  by  reason  of  infirmity,  or  for  want  of  means  to  defray 
necessary  expenses,  such  witness  is  discharged  fiom  custody,  with- 
out punishment.^ 

1010.  Witnesses,  while  under  examination,  may  also  be  guilty 
of  a  contempt  and  breach  of  privilege,  by  refusing  to  answer  a 
proper  question,  or  to  produce  a  paper  which  they  have  been  directed 
to  produce ;  by  giving  false  testimony ;  by  prevaricating  in  their 
evidence ;  or  by  disorderly  or  disrespectful  conduct  towards  the 
house  or  committee,  or  towards  members,  or  towards  any  party  or 
counsel. 

■  1011.  When  a  witness  refuses  to  answer  the  questions  which  he 
is  directed  to  answer,  or  to  produce  a  paper  or  other  document,  the 
proceeding  against  him  is  intended  not  only  as  a  punishment  for 
his  contempt,  but  also  to  compel  him  to  obey  the  order.  For  these 
purposes  a  contumacious  ^^^tness  is  usually  committed,  in  the  first 
instance,  to  the  custody  of  the  sergeant-at-arms.  K  this  fails  to 
induce  him  to  submit  himself  to  the  order,  he  may  then  be  com- 
mitted to  Newgate,  or  some  other  public  prison.  Instances  have 
occurred,  in  which  the  confinement  of  a  witness  has  been  accom- 
panied with  circumstances  of  severity,  intended  to  bring  him  to 
submission;  as,  for  example,  in  the  year  1742,  in  the  case  of 
Nicholas  Paxton,  who,  for  refusing  to  answer  the  questions  put 
to  him  by  the  secret  committee  to  inquire  into  the  conduct  of  the 
earl  of  Oxford,  was,  in  the  first  instance,  committed  to  the  cus- 
tody of  the  sergeant-at-arms,  and  debarred  the  use  of  paper,  pen, 
and  ink ;  and,  persisting  in  his  refusal,  was  then  committed  a  close 
prisoner  to  Newgate,  the  house  at  the  same  time  ordering,  that  he 
be  not  allowed  pen,  ink,  or  paper,  —  that  no  person  be  permitted  to 
have  access  to  him,  without  leave  of  the  house,  —  that  his  wife  have 
leave  to  remain  with  him  during  the  time  of  his  confinement,  but 
that  she  be  not  allowed  pen,  ink,  or  paper, —  and  that  no  person 
have  access  to  her  without  leave  of  the  house.-  In  this  case,  the 
severity  with  which  Paxton  was  treated  proved  ineffectual ;  and  the 

»  Coram.  Jour.  LXXIV.  170,  181, 182.  «  Coram.  Jour.  XXIV.  184     Coram.  Dob 

Xni.  224,  225. 

34* 


102  LEGISLATIVE   ASSEMBLIES.  [PaRT   V. 

house  finding  it  impossible  to  compel  him,  with  some  others,  to 
answer,  resorted  to  the  expedient  of  passing  a  bill  of  indemnity ; 
but,  this  being  rejected  by  the  house  of  lords,  the  inquiry  was,  of 
course,  defeated.  Other  instances  of  the  same  kind  occur  in  the 
journals.  In  the  year  1809,  on  the  occasion  of  the  inquiry  with 
reference  to  the  conduct  of  the  duke  of  York,  it  being  proposed  to 
commit  one  of  the  witnesses  (Mrs.  Clarke)  to  the  custody  of  the 
sergeant-at-arms,  with  orders  to  deny  her  access  to  any  person 
whatever, '  IVIi'.  Speaker  said,  "  the  house  ought  to  pause,  before 
they  came  to  a  decision  upon  a  point,  in  which  the  liberty  of  the 
subject  was  so  materially  concerned."  ^  There  seems  to  be  no 
reason  to  doubt,  that  the  house  may  put  a  contumacious  witness 
into  close  confinement, — and  this  in  fact  was  all  that  was  done  in 
Paxton's  and  other  cases  of  the  same  kind,  —  accompanied  with 
such  restraints  from  communication  with  other  persons  as  it  may 
deem  necessary  to  prevent  the  ends  of  pubhc  justice  from  being 
frusti-ated ;  but  whether  this  right  should  be  exercised  or  not,  in  any 
given  case,  is  a  question  deserving  of  very  grave  and  careful  con- 
sideration.^ 

1012.  In  regard  to  false  testimony,  there  is  a  difference  between 
the  two  houses.  In  the  house  of  lords,  where  witnesses  are  sworn 
and  examined  on  oath,  false  testimony  amounts  to  the  legal  crime 
of  peijury,  and  is  punishable  as  such  by  prosecution  in  the  courts 
of  ordinary  criminal  jurisdiction.  Hence  it  does  not  appear  to  be 
customary  there  to  punish  false  evidence  as  a  contempt.  In  the 
house  of  commons,  where,  as  already  stated,  witnesses  are  not 
sworn,  false  evidence  is  only  punishable  as  a  contempt ;  but  in 
order  that  the  nature  of  the  offence  may  be  dislincily  known,  one 
of  the  sessional  orders  (fu'st  adopted  in  the  year  1700),  declares, 
"  that  if  it  shall  appear,  that  any  person  hath  given  false  evidence 
in  any  cause  before  the  house,  or  any  committee  thereof,  this  house 
will  proceed  with  the  utmost  severity  against  such  offenders."^ 
The  journals  contain  many  cases  of  proceedings  against  witnesses 
for  this  offence. 

1013.  Prevarication  is  a  term  of  general  and  broad  signification, 
which  seems  to  embrace  every  form  and  variety  of  intentional  eva- 
sion of  the  inquiry  put  to  a  witness,  short  of  direct  falsehood ;  as, 
by  answering  aside  from  the  question  ;  answering  a  question  in  a 
different  sense  from  that  in  which  it  is  put ;  pretending  ignorance 

»  Hans.  (1),  Xlf.  436.  »  Coram.  Jour.  XIII.  350. 

•  See  Han3.  (1),  XXXIX.  976. 


Chap.  IV.]  witnesses.  403 

or  want  of  recollection;  in  short,  by  attempting  to  prevent  the 
house  from  obtaining  the  truth,  by  any  cavilling,  quibbling,  or 
shu/Hing,  or  by  any  form  of  fraudulent  or  deceptive  answers.  This 
offence  is  only  punishable  as  a  contempt. 

1014.  Besides  the  different  kinds  of  misconduct,  which  may  be 
committed  by  other  persons  with  reference  to  the  attendance  or 
examination  of  witnesses,  and  which  have  already  been  adverted  to 
under  the  head  of  privilege,  there  are  two  olfences,  which  form  the 
subjects  of  the  following  sessional  order  of  the  house  of  commons, 
which  was  furst  adopted  in  1700,  namely  :  —  "that if  it  shall  appear, 
that  any  person  hath  tampered  with  any  witnesses,  in  respect  of  their 
evidence  to  be  given  to  this  house,  or  any  committee  ;  ^  or,  directly 
or  indirectly,  endeavor  to  deter  or  hinder  any  person  from  appear- 
ing o^  giving  evidence ;  ^  the  same  is  declared  to  be  a  high  crime 
and  misdemeanor ;  and  this  house  will  proceed  with  the  utmost 
severity  against  such  offenders."  ^ 

1015.  If  any  of  the  offences  above  mentioned  are  committed  in 
the  course  of  an  examination  before  the  house,  the  house  may  pro- 
ceed at  once,  if  it  thinks  proper,  to  suspend  the  examination  and 
to  inflict  punishment  for  the  contempt,  and  then  to  resume  and  pro- 
ceed with  the  examination ;  or,  if  it  be  deemed  most  convenient  not 
to  interrupt  the  business  in  hand,  it  may  defer  the  matter  mitil  the 
examination  is  completed.  Where  the  contempt  is  of  a  nature  to 
interrupt  or  embarrass  the  proceedings,  it  will,  of  course,  be  most 
proper,  if  not  entirely  indispensable,  to  consider  and  punish  the 
contempt  immediately. 

1016.  When  any  such  misconduct  takes  place  before  a  commit- 
tee of  the  whole,  —  which,  as  a  committee  has  no  power  to  punish, 
—  it  is  in  the  power  of  the  committee,  if  it  thinks  proper,  to  rise 
and  report  the  special  matter  to  the  house  immediately ;  the  house 
may  proceed  forthwith  to  punish  the  offender,  or  put  off  the  matter 
to  a  more  convenient  time ;  and  may  then  again  resolve  into  the 
committee  and  proceed  with  the  examination ;  or  the  committee 
may  report  the  special  matter,  when  it  reports  progress,  at  the 
close  of  its  sitting  for  that  day,  or  reserve  it  until  its  final 
report. 

1017.  A  select  committee  can  only  report  the  special  matter 
relaiing  to  the  misconduct  of  a  witness,  when  the  house  is  next 
Bitting,  or  when  it  makes  its  fmal  report. 

1  See  the  cnsc  of   William  Williams,  Hans.         3  },\.^y^  307 ;  Comm.  Jour.   XXX VHI.  651, 
1),  XH.  460,  401.  677,  813,  856,  875,  Same,  XC.  330. 

»  Comiii.  Jour.  XHI.  350,  648. 


404  LEGISLATIVE  ASSEMBLIES.  [PaRT    V. 

1018.  In  all  cases  of  misconduct  on  the  part  of  a  witness,  if  the 
house  proceeds  to  punishment,  before  the  examination  is  concluded, 
it  can,  at  the  same  time,  direct  the  officer  having  the  custody  of 
the  offender,  to  bring  him  in  custody  to  give  his  evidence  before  the 
house  or  the  committee.^ 

1019.  It  is  scarcely  possible  to  enumerate  aU  the  different  sorts 
of  disorderly  conduct,  of  which  a  witness  may  be  guilty ;  it  is  dis- 
orderly, for  example,  to  appear  at  the  bar  in  a  state  of  intoxication  ;^ 
or  for  a  quaker,  in  the  midst  of  his  testimony,  to  address  the 
house.3 

1020.  It  seems  hardly  necessary  to  observe,  that,  whilst  a  wit- 
ness is  under  examination,  all  persons  participating  in  it,  as  parties, 
counsel,*  or  members,  are  to  conduct  themselves  in  an  orderly  and 
respectful  manner.^ 


Section  VI.     Of   other   Matters  relating  to  Witnesses  and 

THEIR  Examination. 

1021.  It  may  sometimes  happen,  especially  in  inquiries  of  a  pub- 
lic nature,  that  persons  not  attending  as  witnesses  or  concerned  aa 
parties  may  find  themselves  implicated  by  the  testimony  of  the 
witnesses,  and  may  desire  to  relieve  themselves  from  the  impu- 
tation, or  to  explain  the  matters  with  which  they  are  thus  con- 
nected. *  "When  this  is  the  case,  such  persons  may  by  petition  to 
the  house,  or  through  some  member,  signify  their  desire  to  be 
examined  as  witnesses,  and,  if  the  house  thinks  proper,  may  be  so 
examined  touching  the  matters  which  they  wish  to  explain  or  deny.^ 
So,  where  witnesses  are  contradicted  by  other  witnesses,  the  former 
may,  at  their  own  request,  be  reexamined  to  the  same  facts,  in  the 
presence  of  the  latter,  who  may  then  be  called  upon  to  affirm  or 
take  back  their  first  statement."  Members,  who  desire  to  make 
explanatory  statements,  or  to  contradict  witnesses,  may  be  allowed 
to  do  so,  upon  signifying  their  wishes  to  the  house,  and  submitting 
themselves  to  examination  thereupon,  in  the  same  manner  as  other 
witnesses.^  If  the  testimony  complained  of  has  been  given  befo:#j 
a  select  committee,  which  has  not  yet  made  its  report,  or  which 

»  Comm.  Jour.  XVL  338,  455,  456,  473,  484.         »  See  the  case  of  3fr.  PauU,  a  petitioner  — 
2  Grey,  L  141;  Hans.  (1),  XU.  678.  1062.     Hans.  (1),  VIH.  1063,  1064 

»  Grey,  IH.  102.  «  Hans.  (1),  XH.  441,  511. 

*  Lords'  Jour.  XXV.  315,  b.  316,  a.  '  Hans.  (2),  IX.  487. 

»  Hans.  (1),  XH.  521    522. 


Chap.  IV.]  witnesses.  405 

has  adjourned  without  reporting,  it  seems,  that  the  matter  cannot 
be  regularly  proceeded  with,  until  the  report  of  the  committee  has 
been  received,  or  the  minutes  of  their  proceedings  laid  before  the 
house  ;  until  which  time,  the  house  can  have  no  cognizance  of  what 
has  passed  in  the  committee,  but  are  bound  to  presume  that  every 
thing  done  by  it  has  been  regular.^ 

1022.  The  proper  officer,  to  have  the  custody  of  papers  and 
letters  produced  by  witnesses,  or  otherwise  introduced  in  evidence, 
during  the  intervals  between  one  examination  and  another,  before 
the  house  or  a  committee  of  the  whole,  is  the  clerk  of  the  journals 
and  papers,  who  is  an  officer  of  the  clerk's,  and  for  whom  the  latter 
is  responsible.'^ 

1023.  But  where  the  papers  produced  by  a  witness  were  to  be 
submitted  to  the  examination  of  experts,  for  the  purpose  of  enabling 
them  to  testify,  on  the  examination  being  resumed,  as  to  whether 
the  writings  were  genuine  writings  or  not,  the  papers  were  ordered 
to  be  placed  in  a  box  and  delivered  to  the  clerk  with  directions  that 
they  should  remain  in  his  custody,  until  the  examination  was 
resumed;  but  that  at  particular  hours,  they  should  be  shown  to 
members  of  the  house,  and  to  such  other  persons,  as  should  be 
authorized  by  the  speaker.'^ 

1024.  When  witnesses  are  summoned  for  the  purpose  of  any 
public  inquiry,  to  be  examined  by  the  house  or  a  committee,  their 
expenses  are  paid  by  the  treasury,  under  orders  signed  by  the  assist- 
ant clerk  of  the  parUaments  (that  is,  the  clerk  assistant  in  the  house 
of  lords),  the  clerk  of  the  house  of  commons,  or  by  the  chairman  of 
committees  in  either  house.  In  the  house  of  commons,  where  pub- 
lic inquiries  are  the  most  frequent,  certain  regulations  have  been 
adopted,  by  which  all  the  facts,  necessary  to  enable  the  house  to 
determine  upon  the  proper  allowance  to  be  made  to  witnesses  for 
their  expenses,  are  made  to  appear  in  the  printed  proceedings  of 
every  committee.  In  the  house  of  lords,  a  select  committee  has 
sometimes  been  appointed,  to  inquire  into  and  report  in  detail  the 
expenses  that  should  be  allowed  to  witnesses.'*  In  this  country, 
when  an  investigation  by  witnesses  takes  place  at  the  public 
expense,  the  witnesses  are  usually  paid  out  of  the  contingent  fund 
of  the  house,  by  whose  order  the  inquiry  is  undertaken,  if  it  has 
any ;  otherwise,  out  of  the  public  treasury,  in  virtue  of  an  act  passed 
for  the  purpose. 

1  IIuiis.  (2),  X.  8,  9, 10      ■  <  May,  317.    See  also  Comm.  Jour.  XXXV 

»  Hiiiis.  (1),  XII.  839,  840.  559,  596. 

3  IIiius.  (1),  XII.  840. 


406  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

1025.  "When  witnesses  attend  at  the  instance  of  a  party,  theii 
expenses  are  to  be  defrayed  by'  such  party.  K  the  witnesses  attend 
without  any  summons  or  order,  their  expenses  seem  to  be  matter 
of  private  agreement  or  understanding  between  them  and  the  par- 
ties on  whose  behalf  they  attend,  with  which  the  house  has  nothing 
to  do  ;  if  they  attend  upon  the  summons  or  order  of  the  house,  and 
the  parties  refuse  to  pay  them,  it  is  competent  for  the  house  to 
interfere  and  order  them  to  be  paid ;  ^  and,  in  the  order  or  summons 
for  the  attendance  of  witnesses,  a  condition  may  be  inserted,  that 
they  shall  first  be  paid  or  satisfied  their  reasonable  charges,  if  they 
require  it,  before  being  obliged  to  attend.^ 


CHAPTER   FIFTH. 

OF   HEARING   PARTIES   INTERESTED. 

1026.  It  is  a  principle  of  general  jurisprudence,  recognized  in  the 
practice  of  all  judicial  tribunals,  that  no  man's  rights  or  interests 
shall  be  adjudicated  upon  until  he  has  had  an  opportunity  to  be 
heard  to  explain,  assert,  or  defend  them.  The  same  principle  is 
recognized  in  the  practice  of  parliament,  so  far  as  its  proceedings 
are  judicial,  or  partake  of  the  judicial  character,  and  so  far  as  they 
affect  the  rights  and  interests  of  particular  individuals,  distinct  from 
those  of  the  citizens  in  general.-^ 

1027.  According  to  the  usual  practice,  a  hearing  takes  place,  in 
pursuance  of  an  order  of  the  house,  made  either  upon  the  petition 
of  the  party  interested,  praying  to  be  heard,  or  upon  the  motion  of 
some  member.^  The  common  form,  in  which  a  hearing  is  prayed 
for,  is,  that  the  petitioner  may  be  heard  either  by  himself  or  by  his 

1  Comm.  Jour.  XVIII.  301,  596.  but  hearings  may  occur  upon  other  important 

2  Comm.  Jour.  VIII.  322.  occasions,  especially  in  reference  to  private 
« It  must  be  borne  in  mind,  that  the  sub-     claims,  which,  either  from  their  magnitude, 

ject  of  this  chapter  relates  to  the  right  of  or  from  the  principles  involved,  are  assimilated 

being  heard,  orally  and  by  witnesses  and  evi-  to  public  measures.     See  J.  of  H.  IV.  354,  355, 

dence,  either  in  person  or  by  counsel,  and  not  361;    Same,   527,   542,   545;    Same,  VI.  175; 

to  the  right  of  petition,  which   is  treated  of  Same,  VIII.  234.     When  a  hearing  is  allowed, 

separately  and  by  itself.  the  i)arties  arc  introduced  by  the  officers  of 

«  A  hearing  of  the  parties  takes  place  in  the  the  house,  under  the  direction  of  the  speaker, 

house  of  representatives  of  the  congress  of  the  and  are  then  informed  by  him  of  the  order  of 

United  States,  most  frequently,  as  we  shall  sec  the  house  in  their  behalf.    Cong.  Globe,  VL 

hereafter,  in  cases  of  controverted  elections;  105. 


Chap.  V.]  hearing  parties.  407 

counsel;  and  this  is  the  usual  form  of  the  order,  whether  it  is  made 
on  motion  merely,  or  upon  petition ;  but,  as  it  is  entirely  in  the 
discretion  of  tlie  house  to  determine  how  a  party  shall  be  heard,  the 
order  may  be  framed  thus  in  the  alternative,  or  it  may  restrict  the 
hearing  to  the  party  alone  without  counsel,^  or,  to  the  counsel 
alone,  without  the  party.  It  is  not  usual  to  allow  a  party  to  be 
heard  both  in  person  and  by  counsel ;  and  a  motion  to  that  eflect 
being  made  in  ihe  time  of  Mr.  Speaker  Onslow,  he  said  that  "it 
never  was  the  method  of  this  house  to  admit  parties  to  be  heard 
by  themselves  and  counsel;  the  motion  that  is  always  made  in 
such  cases  is,  that  lhe  petitioners  be  admitted  to  be  heard  by  them- 
selves or  their  counsel."  ^  If,  however,  a  peculiar  case  should  occur, 
in  which  the  interests  of  a  party  could  only  be  properly  presented, 
by  hearing  both  him  and  his  counsel,  the  house  would  doubtless 
allow  a  hearing  to  take  place  in  that  manner.^ 

1028.  It  does  not  appear  to  be  necessary,  however,  in  every  case, 
that  there  should  be  an  express  order  for  the  hearing  of  a  party ;  it 
may  be  implied  from  the  nature  of  the  subject  of  a  petition,  or 
from  the  proceeding  which  takes  place ;  thus,  where  a  petitioner 
sets  forth  certain  facts  in  his  petition,  and  prays  that  leave  may  be 
granted  to  bring  in  a  bill,  thereupon,  and  the  petition  is  ordered  to 
be  taken  into  consideration  at  the  bar  of  the  house,  or  is  referred  to 
a  committee  in  the  usual  form,  such  a  proceeding  appears  to  be 
equivalent  to  an  order  for  hearing  the  petitioner,  in  support  of  the 
matters  and  things  in  his  petition ;  so  the  reference  of  an  election 
petition,  or  an  order  for  taking  such  a  petition  into  consideration 
at  the  bar  of  the  house,  before  the  introduction  of  the  modern  sys- 
tem of  trying  controverted  elections,  was  equivalent  to  an  order  for 
hearing  the  parties  on  both  sides.  The  right  to  introduce  evidence 
and  to  examine  witnesses,  seems  to  be  incidental  to  the  right  of 
being  heard. 

1029.  When  a  party  is  admitted  to  be  heard  in  any  of  the  forms 
above  mentioned,  the  hearing  must  be  resti'icted,  of  course,  to  the 
matters  and  things  set  forth  in  the  petition,  or  which  are  embraced 
within  the  terms  of  the  order,  when  it  is  not  founded  on  a  petition. 
It  is  competent  for  the  house,  however,  to  impose  such  special  re- 
strictions, wiih  regard  to  the  hearing,  as  it  may  think  proper;  which 
may  either  be  included  in  the  order  made  for  the  hearing,  in  the 
first  instance,  or  be  the  subject  of  one  subsequently  made  even 
dm-ing  the  course  of  the  hearing.^     When  the  hearing  is  ordered  to 

1  Comin.  Dob.  X.  419.  ^  Pari.  Reg.  II.  (Lords),  30. 

»  Comm.  Deb.  X.  98.  *  Hans.  (3),  LIV.  73;  Pari.  Reg.  XML  IM. 


408  LEGISLATIVE   ASSEMBLIES.  [PaRT  V 

take  place  before  a  committee,  any  variation  from  the  terms,  of  the 
original  order  must  be  effected  by  means  of  an  instruction  from  the 
house  to  the  committee,  and  not  by  any  vote  or  proceeding  of  the 
committee  itself. 

1030.  AVhere  a  hearing  is  ordered  at  the  bar  of  the  house,  and 
the  order  of  the  day  for  the  proceeding  has  been  read,  the  house 
may  then  refuse  to  direct  the  party  or  counsel  to  be  called  in,  thus 
in  fact  discharging  the  order  for  the  hearing;  or  it  may  restrict 
the  hearing  in  any  manner  it  may  think  proper,  either  before  or 
after  the  hearing  has  commenced.  But  when  the  hearing  is  before 
a  committee,  the  committee  has  no  such  discretion,  either  as  to  the 
hearing  itself,  or  the  manner  in  -which  it  is  to  be  conducted ;  the 
order  of  the  house  being  obligatory  upon  it  to  hear  the  party  ac- 
cording to  the  terms  of  the  order.^ 

1031.  When  a  hearing  takes  place  with  reference  to  any  subject, 
which  is  not  embraced  in  the  form  of  a  bill,  it  is  for  the  house  to 
determine  as  to  the  time  and  manner,  in  each  particular  case; 
when  had  upon  bills,  the  hearing  usually  takes  place  on  the  second 
reading,  according  to  certain  established  rules  of  proceeding,  which, 
so  far  as  may  be  necessary,  will  be  treated  of  under  the  head  of 
bills,  in  the  fifth  and  sixth  sections  following. 

1032.  In  the  year  1771,  it  was  stated  by  a  member  in  debate 
in  the  house  of  commons,  that  "  The  rule  of  proceeding  of  this  high 
and  supreme  court,  upon  a  question  of  privilege,  is,  not  to  hear 
counsel;  not  to  allow  counsel,  to   allow  lawyers,  to  reason  and 
argue,  and  form  conclusions,  at  its  bar,  on  this  subject."  ^     This 
was  laid  down  at  a  time  when  the  privileges  of  parliament  were 
considered  to  be  very  large  and  indefinite,  "  and  when  it  was  thought 
that   the   most  dangerous  consequences  would  result,"  if  all  the 
privileges  of  parliament  were  once  to  be  set  down  and  ascertained, 
and  no  privilege  to  be  allowed,  but  what  was  so   defined  and  de- 
termined.3     When  such  notions  prevailed,  —  when,  in  short,  the 
privilege  of  parliament  was  what  each  house  chose  to  make  so 
upon  the  particular  occasion,  —  it  cannot  be  thought  strange,  that 
counsel  should  be  precluded  from  addressing  the  house  upon  topics 
so  entirely  and  exclusively  within  its  own  absolute  discretion,  and 
to  be  decided  upon  principles  and  with  reference  to  circumstances, 
of  which  strangers  must  necessarily  be  ignorant.     To  allow  coun- 
sel to  be  heard  on  a  question  of  privilege,  — such  being  the  nature 
of  privilege,  —  would  be  precisely  equivalent  to  calling  in  the  party 

1  Pari.  Reg.  (2),  XVIII.  16,  18.  *  Black.  Comm.  L  164. 

a  Cav.  Deb.  II.  428. 


Chap.  V.]  hearing  parties.  409 

implicated,  or  his  counsel,  to  give  their  advice  or  to  make  their  re- 
quest to  the  house,  with  reference  to  the  kind  or  degree  of  punish- 
ment which  it  would  be  proi)er  to  inflict  on  him.  Since  the  period 
above  racniioned,  a  different  doctrine  has  been  cslablishcdus  1o  the 
nature  of  parliamentary  privilege  ;  which  is  now  regarded  as  a  part 
of  the  law  of  the  land  evidenced  by  the  customs  and  usages  of  par- 
liament, when  not  specially  defined  by  statute,  and  incapable  of 
enlargement  by  the  resolutions  or  proceedings  of  either  house.  It 
may  w  <:11  be  doubted,  therefore,  whether  the  rule  above  mentioned 
ought  not  now  to  be  considered  as  obsolete.^ 

1033.  It  is  the  duty  of  a  party,  or  counsel,  on  a  hearing,  to  con- 
fine himself,  both  in  the  introduction  of  his  evidence,  and  in  the 
course  of  his  argument,  to  the  matters  and  things  contained  in  his 
petition,  or,  embraced  in  the  order  for  the  hearing ;  -  to  pay  due 
observance  to  the  orders  of  the  house ;  to  conduct  himself  respect- 
fully towards  the  house  or  committee  and  towards  all  the  members ; 
and  to  treat  other  parties,  counsel  and  witnesses,  in  a  proper  manner. 

1034.  Having  thus  considered  the  subject  generally,  it  will  be 
proper  now  to  examine  it  with  especial  reference  to  each  class  of 
cases  in  which  hearings  take  place.  The  cases,  in  which  the  rights 
or  interests  of  individuals  are  so  involved  as  to  give  them  a  right^ 
according  to  the  law  and  practice  of  parliament,  to  be  heard,  occur : 
first,  when  the  house  is  proceeding  in  its  judicial  or  quasi-judicial 
capacity ;  second,  when  it  is  proceeding  legislatively  in  reference  to 
a  matter  of  private  concern ;  and,  third,  when  it  is  proceeding,  in 
its  legislative  capacity,  in  reference  to  a  matter  of  public  concern. 
Under  the  head  of  judicial  proceedings,  are  embraced  those  which 
take  place  in  adjudicating  upon  the  right  of  members  to  their  seats, 
and  in  punishing  for  offences  committed  against  the  authority  of 
the  house  or  the  persons  of  its  members,  both  of  which  are  strictly 
judicial,  the  first  being  of  a  civil,  and  the  last  of  a  criminal  charac- 
ter ;  and,  under  the  head  of  quasi-judicial  proceedings,  are  embraced 
inquiries  instituted  into  the  conduct  of  some  public  officer  or  other 
functionary,  with  a  view  to  his  impeachment  or  removal  from  ollice, 
or  for  the  purpose  of  correcting  some  official  abuse,  and  the  pro- 
ceedings which  take  place  in  reference  to  bills  of  attainder,  of  pains 
and  penalties,  and  disqualifying  bills.  The  second  division  above 
suggested  includes  private,  and  the  third  public,  bills.  The  several 
sorts  of  proceedings  thus  enumerated  will  now  be  separately  con- 
sidered, with  reference  to  the  hearing  of  the  parties. 

»  See  Hans.  (1),  VIII.  1000,  1002,  1059.  «  Coram.  Jour.  XLI.  S39. 

35 


410  LEGISLATIVE  ASSEMBLIES.  [PaRT   V 


Section  '  L    Rights  of  Members  to  their  Seats. 

1035.  In  both  houses,  when  the  right  of  a  member  to  his  seat 
comes  in  question,  it  is  tried  between  the  parties,  if  there  are  ad- 
verse claimants,  or  ex  parte,  if  there  is  but  one,  in  a  manner  analo- 
gous to  the  trial  of  a  question  of  civil  right  before  the  ordinary 
tribunals ;  the  parties  are  allowed  to  introduce  and  examine  wit- 
nesses, and  are  fully  heard,  by  themselves  or  their  counsel,  and  the 
members,  who  sit  as  judges,  are  bound  to  decide  not  according  to 
what  they  may  think  most  expedient  in  the  particular  case,  but 
according  to  the  law  and  the  evidence.  In  all  cases  of  this  kind, 
in  whatever  form  the  inquiry  may  be  instituted,  it  is  the  right  of 
the  parties  interested  to  be  heard,  either  with  or  without  an  express 
order  to  that  effect.  When  a  petition  is  received  and  referred  to  a 
committee,  or  ordered  to  be  taken  into  consideration  at  the  bar  oi 
the  house,  no  express  order  seems  to  be  necessary ;  the  proceeding 
itself  is  a  sufficient  authority  to  the  parties  to  be  heard.  In  the 
commons,  the  practice  with  reference  to  controverted  elections  is 
now  regulated  entirely  by  statute.  In  the  house  of  representatives 
in  congress,  inqukies  relating  to  the  seats  of  members  are  usually 
referred,  in  the  first  instance,  to  the  committee  on  elections  before 
whom  the  parties  produce  their  evidence  and  are  heard.  It  is  com- 
mon, also,  for  them  to  be  allowed  a  hearing,  by  leave  of  the  house 
in  the  house  itself,  or  in  committee  of  the  whole,  on  the  resolutions 
reported  by  the  committee  on  elections.  "Where  a  hearing  of  this 
kind  takes  place,  the  petitioner,  or  other  person,  addressing  the 
house  on  his  behalf,  is  bound,  by  all  the  rules,  with  regard  to  speak- 
ing, which  are  obligatory  on  members.^ 


Section  II.     Infliction  of  Punishment. 

1036.  When  proceedings  are  instituted  or  take  place  for  the 
punishment  of  offences,  —  against  the  house  itself  or  the  persons  of 
its  members,  —  the  parties  implicated  are  always  heard  in  their  de- 
fence, unless  the  offence  is  of  such  a  nature  and  so  manifest  in  its 
character,  as  to  render  any  such  proceeding  a  mere  idle  ceremony ; 
as,  for  example,  in  the  case  of  a  witness  who  prevaricates,  testifies 
falsely,  or  refuses  to  answer,  the  house  proceeds  at  once,  without 
hearing  the  offender,  unless  by  way  of  apology,  or  to  manifest  hia 
contrition,  —  to  punish  him  for  his  contempt. 

1  Cong.  Globe,  XV.  230,  231. 


Cblip.  v.]  hearing  pahties.  413 


Section    III.      Inquiries    respecting    the    Conduct    of    Public 

Officers. 

1037.  In  cases  of  this  description,  when  the  purpose  in  view  is 
the  removal  or  punishment  of  the  individual,  opportunity  is  always 
afforded,  before  the  proceeding  is  terminated,  for  the  party  con- 
cerned to  be  heard  in  his  defence.  When  a  complaint  of  miscon- 
duct is  made  by  private  individuals  against  a  public  officer,  and  an 
investigation  takes  place,  for  either  of  the  purposes  above  stated, 
the  inquiry  is  usually  conducted  by  the  parties  before  the  house  or 
committee,  in  a  manner  analogous  to  a  proceeding  in  court.  When 
an  inquiry  is  instituted,  in  which  the  conduct  of  a  public  officer  is 
involved,  or  incidentally  comes  in  question,  the  investigation  is 
usually  ex  parte,  and  necessarily  so,  when  it  is  before  a  committee 
of  secrecy.  In  such  a  case,  if  any  charge  grows  out  of  the  proceed- 
ing, the  party  implicated  will  be  entitled  to  a  hearing.  When  an 
investigation  takes  place,  with  a  view  to  an  impeachment,  the  pre- 
liminary inqtiiries,  upon  which  the  articles  of  impeachment  are 
founded,  are  generally  ex  parte. 


Section  IV.    Bills  of  Attainder  and  of  Pains  and  Penalties. 

1038.  The  preliminary  inquiries,  if  any  are  instituted,  which  take 
place  previous  to  the  introduction  of  bills  of  this  description,  are 
usually,  if  not  always,  conducted  ex  parte  ;  but,  at  the  proper  stage 
the  parties  affected  by  them  are  admitted  to  defend  themselves  by 
counsel  and  witnesses  before  both  houses. 


Section  V.    Private  Bills. 

1039.  In  reference  to  private  bills,  the  proceeding  is  partly  of  a 
legislative  and  partly  of  a  judicial  character ;  legislative,  so  far  as 
the  forms  of  proceeding  are  concerned,  and  the  interests  of  the 
public  are  involved ;  judicial,  so  far  as  it  is  necessary  to  discriminate 
between  and  adjudicate  upon  the  conflicting  interests  of  different 
parties.  When,  therefore,  in  proceeding  upon  a  private  bill,  there 
is  occasion  for  the  exercise  of  judicial  inquiry  and  determination, 
the  parties  interested  on  all  sides  are  entitled  to  be  heard. 

1040.  By  the  standing  orders  of  both  houses  of  parliament,  all 
private  bills  are  required  to  be  brought  in  upon  petition ;  and  the 


412  LEGISLATIVE    ASSEMBLIES.  [PaRT    V. 

recemng  such  a  petition,  and  referring  it  to  a  committee  for  con- 
sideration, in  the  usual  manner,  is  equivalent  to  an  order  aulhor- 
izing  the  petitioners  to  be  heard.  But  it  is  an  estabHshed  rule  or 
order,  not  to  admit  adverse  parties  to  be  heard  before  the  com- 
mittee to  ^vhom  such  petition  is  referred,  in  the  first  instance.  If, 
upon  the  case  as  presented  by  the  petitioners,  the  committee  come 
to  a  conclusion  favorable  to  the  prayer  of  the  petition,  and  a  bill  is 
thereupon  brought  in,  those  parties  who  are  adversely  interested 
may  present  their  petitions  against  the  bill  or  some  of  its  provisions, 
and  be  thereupon  heard  against  it  at  some  appropriate  stage  of  the 
proceedings.  Where  adverse  parties  are  thus  allowed,  upon  their 
petition,  to  be  heard,  it  is  usual,  at  the  same  time,  to  make  an  order 
for  the  hearing  of  the  parties  in  favor  of  the  bill,  and  against  such 
petition.  The  rule  is  the  same,  where  a  bill  is  inti'oduced  on 
leave,  without  any  previous  reference  of  the  petition ;  or,  where  the 
petition  is  taken  into  consideration  by  the  house  itself,  instead  of 
being  referred. 


Section  VI.    Public  Bills  and   other   Measures  of  a  Public 

Character. 

1041.  In  reference  to  public  bills,  and  other  measures  of  a  pubUc 
character,  the  proceeding  of  parliament  is  strictly  in  its  legislative 
capacity.  It  originates  all  such  measures  as  it  deems  for  the  pubhc 
good ;  it  institutes  and  conducts  inquiries,  when  necessary,  for  its 
own  information ;  and  it  enacts  laws  and  takes  other  public  meas- 
ures, according  to  its  own  wisdom  and  judgment.  The  forms,  in 
which  its  deliberations  are  conducted,  are  established  for  its  own 
convenience  ;  and  all  its  proceedings  are  independent  of  individual 
parties ;  the  constituents  of  the  legislative  body  may  petition,  and, 
in  peculiar  circumstances,  may  be  heard,  but  they  do  not,  as  in  the 
case  of  private  bills,  participate  directly  in  the  conduct  of  the  busi- 
ness, or  have  any  immediate  influence  upon  the  judgment  of  par- 
liament.i  ^t  the  same  time,  however,  that  parliament  is  bound,  in 
the  exercise  of  the  high  and  important  functions  with  which  it  is 
intrusted,  to  decide  upon  measures  of  public  concern,  with  refer- 
ence to  public  and  general  grounds  only,  and  iiTCspective  of  the 
wishes  of  private  individuals  ;  it  yet  recognizes  the  gi-eat  principle, 
that  the  interests  of  the  public  are  nevertheless  to  be  effected  at 

1  May,  384,  385. 


Chap.  V.]  hearing  parties.  413 

the  smallest  possible  expense  of  private  and  individual  interests; 
and  it  therefore  allows  private  persons,  whose  inlerests  are  injuri- 
ously affected  or  likely  to  be  so  by  public  measures,  to  be  heard 
with  reference  to  such  measures. 

1042.  The  ground,  therefore,  upon  which  private  individuals  are 
allowed  to  be  heard  with  reference  to  public  measures,  is  the  effect 
and  operation  of  those  measures  upon  the  peculiar  interests  of  such 
persons,  distinct  from  their  effect  and  operation  upon  the  ])ublic 
generally.  In  such  cases  the  controversy  is  not  between  the  con- 
flicting claims  and  interests  of  individuals ;  but  between  the  in- 
terests real  or  supposed  of  the  public,  on  the  one  side,  and  the 
interests  real  or  supj)oeed  of  private  persons,  on  the  oiher.  With 
regard  to  the  former,  it  would  be  manifestly  at  variance  with  the 
theory  of  legislative  assemblies,  to  allow  individuals  to  be  heard ; 
this  would  be  to  allow  persons  who  were  not  members  to  partici- 
pate in  the  performance  of  duties,  which  members  alone  are  ap- 
pointed to  perform,  and  for  the  performance  of  which  they  alone 
are  responsible ;  and  as  there  could  be  no  limit  to  such  hearings,  if 
allowed  at  aU,  —  one  individual  having  as  much  right  as  another, 
to  present  his  views,  —  it  would  be  clearly  impracticable,  consist- 
ently with  the  performance  of  any  legislative  business  at  all,  to 
allow  such  hearings  to  take  place.  With  regard  to  the  latter,  it  is 
equally  clear,  that  in  no  other  mode  than  by  a  hearing,  can  the 
rights  and  interests  of  individuals  be  adequately  represented  for  the 
consideration  of  the  legislative  power.  The  foregoing  considera- 
tions suggest  the  general  ground  upon  which,  it  is  believed,  the 
usage  and  practice  of  parliament,  on  this  subject,  rests,  namely,  that 
individuals  are  entitled  to  be  heard,  with  reference  to  measures  of 
public  concern,  so  far  as  their  private  and  peculiar  interests  Eire 
thereby  affected,  and  so  far  as  those  interests  are  legitimately  en- 
titled to  the  consideration  of  the  legislature.  The  cases  in  which 
private  parties  are  entitled  to  be  heard,  with  reference  to  public 
measures,  may  be  arranged  in  two  classes,  Jirst,  where  the  parties 
pray  for  relief  by  the  introduction  of  some  public  measure ;  and, 
second,  where  they  seek  to  avoid  an  injury,  which  will  result 
to  them  from  the  adoption  of  some  public  measures  already 
pending. 

1043.  I.  When  the  rights  or  interests  of  private  individuals  are 
peculiarly  affected,  in  an  injurious  manner  by  the  state  of  existing 
institutions  and  laws,  or  by  circumstances  growing  out  of  the 
foreign  or  other  relations  of  the  country,  such  persons  may  bring 
their  grievances  to  the  attention  of  parliament,  by  way  of  petition, 

35* 


414  LEGISLATIVE  ASSEMBLIES.  [PaRT   V 

and  may  be  heard  in  support  of  their  claim  to  relief;  although 
relief  can  only  be  obtained  by  the  adoption  of  some  measure  of  a 
public  character.  Many  cases  of  Ihis  description  are  to  be  found 
in  the  journals  of  both  houses.  The  following  may  be  taken  as 
examples.  In  the  year  1737,  several  petitions  of  merchants  and 
others,  trading  to  and  interested  in  the  British  plantations  in 
America,  were  presented  to  the  house  of  commons,  setting  forth  the 
injuries  and  losses,  which  the  petitioners  had  sustained,  in  conse- 
quence of  the  depredations  of  the  Spaniards  upon  their  trade  and 
commerce.  These  petitions  were  referred  to  the  consideration  of  a 
committee  of  the  whole  house,  with  instructions  to  hear  the  peti- 
tioners, if  they  should  think  fit.^  In  the  following  year,  a  conven- 
tion having  in  the  mean  time  been  concluded  with  Spain,  a  copy 
of  which  had  been  communicated  to  the  house  of  commons,  and 
referred  to  a  committee  of  the  whole  house,  several  petitions  of  a 
similar  character  were  presented,  representing  the  insufficiency  of 
the  measures  for  the  relief  of  the  petitioners ;  which  petitions  were 
referred  to  the  committee  of  the  whole,  with  instructions  to  hear 
the  petitioners.2  In  the  year  1786,  the  retail  shopkeepers  of  Lon- 
don and  other  places  petitioned  parliament  for  the  repeal  of  an  act 
passed  in  the  previous  session  for  imposing  a  tax  on  shops,  on  the 
ground,  that  the  tax  was  in  fact  an  additional  house  tax,  borne  by 
retail  traders  alone,  which  did  not  fall  upon  the  consumer,  and  was 
consequently  partial  and  unjust ;  these  petitions  were  referred  to 
the  consideration  of  a  committee  of  the  whole  house,  with  directions 
to  hear  the  petitioners.-^  But  where  the  abuse  or  grievance  com- 
plained of  is  of  a  general  and  public  character,  and  does  not  pecu- 
liarly affect  the  rights  or  interests  of  particular  individuals,  peti- 
tioners of  that  description  are  not  in  general  entitled  to  be  heard ; 
thus,  where  a  petition  of  certain  burgesses  of  the  royal  burghs  of 
Scotland,  in  behalf  of  themselves  and  others,  was  presented  to  the 
house  of  commons,  complaining  of  very  great  grievance  in  the 
administration  of  the  government  of  all  the  royal  burghs  of  Scot- 
land, and  praying  that  the  system  of  government  might  be  altered, 
corrected,  or  amended ;  the  house  refused  the  petitioners  a  hearing, 
apparently,  on  the  ground  above  mentioned.^ 

1  Comin.  Deb.  X.  9G,  105.  "  generally  speaking,  none  but  private  peti- 

a  Coinm.  Deb.  X.  417.  tions   from   individuals,  were    supported  by 

3  Comm.  Jour.  XLI.  175,  176,  177,  187,  189,  counsel  at  the  bar;  but  tliore  were  exceptions 

205  245.  to  this,  according  to  circumstances;  the  East 

*  Comm.  .Tour.  XLVII.  749,  750;  Pari.  Reg.  India  Company,  who  held  rights  by  charter, 

(2),   XXXn.    447,    448,    449;     Mr.    Speaker  had  been  heard  by  counsel  on  imbli:  billfi-'* 

Addington,  in  giving  his  opinion,  said,  that  Pari.  Reg.  as  above. 


Chap.  V.]  hearing  parties.  415 

1044.  II.  When  the  rights  or  interests  of  private  individuals  are 
liable  to  be  injuriously  affected  by  the  adoption  of  some  public 
measure,  which  is  already  introduced  and  jjcnding,  such  persons 
are  entitled  to  be  heard  against  the  measure  in  question,  so  far  as 
their  interests  are  concerned.  The  following  are  cases  of  this  kind. 
In  the  year  1783,  a  bill  to  shorten  the  period  of  limitation  for  the 
bringing  of  writs  of  right  being  under  consideration  in  the  house 
of  commons,  an  individual,  alleging  himself  to  be  the  son  and  heir 
of  the  late  earl  of  Leicester,  petitioned  to  be  heard  at  the  bar  against 
the  bill,  on  the  ground,  that,  as  it  was  then  drawn,  it  would  be  an 
effectual  and  insuperable  bar  to  the  prosecuticui  of  his  claims  to  the 
estate  of  his  father ;  the  petitioner  was  heard  accordingly,  and  a 
general  saving  clause  was  thereupon  introduced  into  the  bill,  allow- 
ing him  and  all  others  similarly  situated,  a  reasonable  time  for  the 
commencement  of  their  actions.^  In  the  year  1785,  the  house  of 
commons  having  agreed  to  certain  resolutions  for  adjusting  the 
commercial  intercourse  between  Great  Britain  and  Ireland,  and 
sent  them  to  the  lords  for  their  concurrence,  petitions  were  pre- 
sented in  that  house  against  the  resolutions,  by  the  manufacturers 
of  glass  and  others,  who  were  allowed  to  be  heard  in  support  of 
their  petitions.-  The  rule  is  otherwise,  where  the  measure  in  ques- 
tion is  not  one  wliich  affects  the  interests  of  individuals  in  a 
peculiar  and  distinct  manner.  Thus,  where  a  bill  was  pending  in 
the  house  of  commons  for  repealing  the  duties  on  tobacco  and  snuff, 
and  for  granting  new  duties  in  lieu  thereof,  and  the  city  of  London 
petitioned  to  be  heard  against  the  bill  in  order  to  show  the  injurious 
consequences  which  would  result  to  the  trade  and  navigation  of 
Great  Britain  from  any  further  extension  of  the  excise  laws,  the 
house  refused  a  hearing,  on  the  ground,  that  it  was  "  a  principle, 
never  to  hear  any  persons  at  the  bar  of  the  house,  by  their  counsel, 
against  a  bill,  but  when  they  stated  that  they  had  an  immediate 
interest  in  such  bill,  and  that  if  it  passed  into  a  law,  their  interest 
would  be  materially  affected."  ^ 

1045.  In  the  cases  above  stated,  and  in  other  similar  cases,  where 
petitioners  are  allowed  a  hearing  with  reference  to  public  measures, 
it  is  not  the  usage,  as  it  is  in  the  case  of  private  bills,  to  make  an 
order  for  the  hearing  of  parties  on  the  other  side ;  the  measure  thus 
called  in  question  being  of  a  public  character,  and  to  be  sustained 
on  public  grounds,  which  it  would  be  inconsistent  with  the  func- 

1  Pari.  Reg.  (2),  X.  201,  202,  203.  s  Comm.  Jour.  XLIV.  611;  Piirl.  Reg.  (2), 

»  Pari.  Reg.  (2),  XVIII. ;  Lords,  27.  XXVI.  306 


416  LEGISLATIVE   ASSEMBLIES.  [PaRT   V. 

tions  of  a  legislative  body  to  receive,  either  on  the  one  side  or  on 
the  oilier,  from  a  hearing  of  private  individuals  at  its  bar.  Many 
cases  have  occurred,  however,  in  which  the  house,  without  any  claim 
made  on  the  part  of  an  adverse  party,  to  be  heard,  has  thought 
fit,  for  its  own  satisfaction,  to  call  for  and  hear  further  evidence, 
after  the  petitioners  against  a  bill  have  closed  their  case.^ 

1046.  In  order  to  authorize  a  hearing,  in  reference  to  a  public 
measure,  there  must  be  an  order  of  the  house  to  that  effect ;  which 
is  usually  made  upon  the  petition  of  the  parties  interested,  and 
either  directs  the  hearing  to  take  place  at  the  bar  of  the  house,  or 
refers  the  petition  to  the  consideration  of  a  committee,  with  an 
instruction  or  direction  to  the  committee  to  hear  the  parties  there- 
upon, agreeable  to  the  prayer  of  their  petition.^ 

1047.  It  frequently  happens,  that  the  public  measures,  which  are 
the  subject  of  a  hearing,  affect  great  numbers  or  particular  classes 
of  individuals,  in  a  similar  manner.  When  this  is  the  case,  those 
persons  who  are  similarly  interested  may  unite  in  one  petition,  or 
they  may  come  to  the  house  with  several  petitions.  In  the  latter 
case,  it  must  be  optional  with  the  house,  of  course,  to  allow  as 
many  hearings  as  there  are  petitions,  or  to  restrict  aU  the  petitions 
in  the  same  interest  to  one  hearing.  If  the  house  was  obliged  to 
hear  the  parties  separately  on  each  of  a  number  of  separate  petitions, 
—  all  having  the  same  interest  in  view,  —  persons  desirous  of 
impeding  the  progress  of  any  public  measure  would  have  nothing 
more  to  do  than  to  come  to  the  house  with  separate  petitions,  all 
of  the  same  tendency,  and  calculated  to  promote  the  same  interests ; 
and,  by  that  means,  the  house  or  the  committee  would  be  obliged 
to  sit  and  hear  day  by  day,  arguments  and  evidence  solely  calcu- 
lated for  the  purpose  of  procrastination,  but  without  affording  any 
new  light  upon  the  matter  before  it.^  But  this  is  a  matter  which 
of  necessity  must  depend  entirely  upon  the  discretion  of  the  house, 
to  be  exercised  according  to  the  circumstances  of  each  particular 
case ;  and,  in  which  great  latitude  would  be  likely  to  be  allowed, 
80  long  as  the  object  of  petitioners  appeared  to  be  to  inform  the 
house,  without  any  unnecessary  consumption  of  its  time ;  thus, 
where  petitions  relative  to  the  same  public  measure,  and  founded  in 
the  same  interest,  have  been  received  from  several  different  places, 
it  has  been  the  usage  to  allow  a  separate  hearing  on  each,  if  desired 
by  the  parties. 


»  Hans.  (1),  X.  1251,  1252, 1253.  »  Pari.  Reg.  11. 18;  Same,  XXIV.  91,  102. 

*  Comm.  Jour.  XLI.  205. 


ClIAP.  VI.J         COMMUNICATIONS    WITH    PUBLIC    OFFICERS.  417 


CHAPTER    SIXTH. 

PUBLIC    OFFICERS    SUBJECT    TO    THE    ORDER   OF   THE   ASSEMBLY. 

1048.  The  power  of  the  two  houses  to  obtain  information,  by 
calling  on  public  oiiicers  to  furnish  them  with  accounts,  returns,  and 
statements  of  facts,  relative  to  the  duties  and  business  of  their 
respective  offices,  has  akeady  been  alluded  to  in  a  former  chapter. 
Such  officers  may  also  be  required  to  attend  as  witnesses,  and  to 
produce  records  and  papers,  which  are  in  their  official  custody. 
But  the  authority  of  parliament  does  not  stop  here.  Public  officers 
are  not  only  bound  to  yield  obedience  to  requisitions  of  this  kind ; 
they  are  also  required  to  lend  their  official  aid,  in  certain  cases,  or 
to  perform  certain  official  duties,  by  the  direction  of  either  house. 
It  would  not  be  practicable  to  enumerate  in  detail,  all  the  officers 
who  are  thus,  for  particular  purposes,  subject  to  the  order  of  parlia- 
ment ;  or  the  various  official  acts,  which,  according  to  the  laws  and 
usage  of  parliament,  they  may  be  called  upon  to  perform.  It  is 
proposed  only  to  mention  some  of  the  most  important,  which  wiU 
be  enumerated  by  reference  rather  to  the  duties  or  services  required, 
than  to  the  several  officers  by  whom  they  are  to  be  performed. 
Some  of  the  principal  of  these  purposes,  for  which  the  services  of 
public  officers  are  called  in  to  the  aid  of  parliament,  relate,  firsts 
to  the  returns  and  elections  of  members  ;  second,  to  the  prosecution 
and  punishment  of  offenders  ;  third,  to  publishing  or  distributing 
the  orders  of  the  house  ;  fourth,  to  rendering  assistance  to  the  offi- 
cers of  the  house ;  and,  fifth,  to  the  preservation  of  the  peace  in  the 
place  where  the  parliament  is  sitting ;  to  which  may  be  added, 
sixth,  the  right  of  the  house  of  lords  to  call  upon  the  judges  for  their 
opinions  in  matters  of  law. 


Section  I.    Returning  Officers. 

1049.  The  election  of  members  of  the  house  of  commons  takes 
place  in  pursuance  of  writs  issued  out  of  chancery,  directed  to  the 
proper  officers ;  who  are  bound  by  their  official  duties  to  cause  the 
writs  to  be  executed  by  the  election  of  members,  and  to  be  season- 
ably returned  into  chancery ;  where  the  wTits  and  returns  are  placed 
m  the  custody  of  the  clerk  of  the  crown  in  chancery,  who  makes  a 


418  LEGISLATIVE    ASSEMBLIES.  [PaIIT    V 

record  of  the  members  so  returned  in  a  book  kept  by  him  for  that 
purpose. 

1050.  The  return  thus  made  and  the  record  of  it  as  above  men- 
tioned are  the  evidence  of  a  member's  right  to  his  seat.  But,  as 
this  record  is  made  up  from  the  returns,  in  the  first  instance,  and  as 
they  are  received,  which  cannot  be  altered  but  by  the  authority  of 
the  house  ;i  and,  as  the  house  which  is  the  sole  judge  of  the  returns 
and  elections  of  its  members,  may  afterwards  upon  investigation 
find  that  a  particular  return  is  wrong,  and  that  some  other  person 
should  have  been  returned ;  it  then  becomes  necessary,  by  analogy 
to  legal  proceedings  in  certain  cases,  that  the  record  should  be  made 
to  conform  to  the  fact.  Inasmuch,  however,  aa  the  record  is  in  the 
chancery,  and  the  power  to  rectify  it  exists  only  in  the  house,  the 
method  of  proceeding  is  for  the  house  to  direct  the  returning  offi- 
cers, if  necessary,  and  the  clerk  of  the  crown  in  chancery,  to  attend 
in  the  house,  and  there  in  its  presence  to  make  the  requisite  altera- 
tions. 

1051.  These  officers  may  also  be  directed  to  perform  other 
official  acts  connected  with  the  election  and  return  of  members, 
and  are  subject  to  the  censure  and  punishment  of  the  house  for 
any  neglect  of  duty.  The  election  and  return  of  members,  having 
abeady  been  treated  of  at  length,  need  not  be  further  alluded  to  in 
this  place.  In  the  house  of  lords,  where  the  representative  peers  of 
Scotland  and  Ii'eland  are  elected  and  returned  in  a  manner  analo- 
gous to  the  election  and  return  of  members  of  the  house  of  com- 
mons, the  returning  officers  are  subject  to  the  same  control  and 
direction  of  the  house. 


Sectiox  II.    Prosecution  and  Punishment  of  Offenders. 

1052.  In  the  prosecution  and  punishment  of  offences,  which 
affect  either  house  of  parliament,  or  the  persons  of  its  members,  the 
house  for  the  most  part  proceeds  directly  by  its  own  authority  and 
by  the  agency  of  its  own  officers  ;  ^  still,  there  are  cases,  in  which  it 
directs  proceedings  to  be  instituted  in  other  courts,  either  as  a  sub- 
stitute  for,  or  in  addition  to,  the  punishments  which  it   infficts.^ 

1  Comin.  Jour.  X.  377.  quested  the  president  of  the  United  States  to 
'  See  Lords'  Jour.  XX.  363.  institute  criminal,  and  directed  the  secretary 
'  The  liouse  of  representatives  of  congress,  of  tlie  treasury  to  institute  civil,  proceedings 
In  January,  1S45,  having  previously  dismissed  against  him  for  an  embezzlement  of  the  pub- 
Its  defaulting  clerk,  C.  J.  McNulty,  then  re-  lie  money.     Cong.  Globe,  XIL  153 


ClIAP.    VL]         COMMUNICATIONS   WITH   PUBLIC    OFFICERS.  419 

There  are  also  many  cases,  which  are  bron£rht  to  the  knowledge  of 
the  house,  either  directly  or  indirectly,  in  which  the  house  itself  has 
no  jurisdiction  or  an  inadc([uate  one  to  punisli ;  or  which  it  does 
not  look  upon  as  sufficiently  important  to  be  the  subjects  of 
impeachment ;  but  which,  nevertheless,  the  public  interest  requires 
Bhordd  be  adequately  punished.  In  all  these  cases,  it  is  the  usage  of 
the  two  houses  to  take  measures  for  the  institution  of  prosecutions 
by  the  attorney-general  (sometimes,  but  rarely,  1he  soHcilor-general 
is  joined  with  him)  in  the  courts  of  common  law.  In  the  house  of 
commons,  the  course  is  either  to  order  the  attorney-general  directly, 
or  to  address  the  crown  to  direct  him,  to  institute  the  prosecution;^ 
in  the  house  of  lords,  in  which  proceedings  of  this  kind  are  com- 
paratively infrequent,  the  form  is  by  direct  order,  and  not  by 
address.'-^  Some  examples  will  now  be  given  of  the  occasions  on 
which  prosecutions  by  the  attorney-general  have  been  ordered  or 
addressed  for. 

1053.  I.  Where,  in  the  course  of  the  investigations,  instituted 
for  a  different  purpose,  the  existence  of  some  offence  of  a  public 
character  has  incidentally  come  to  light,  the  house  has  ordered  a 
prosecution  to  be  instituted.  Thus,  the  commissioners  for  stating 
the  public  account,  in  1693,  having  acquainted  the  house  of  com- 
mons, that  they  had  taken  the  examinations  of  several  witnesses 
touching  an  embezzlement  of  goods  out  of  a  French  prize  by  the 
captain  and  lieutenant  of  the  ship  of  war  by  whom  the  prize  was 
taken,  the  house  thereupon  ordered  the  commissioners  to  deliver 
the  examinations  to  the  attorney-general,  and  the  latter  to  take  care 
that  there  be  an  effectual  prosecution  of  the  captain  and  lieuten- 
ant for  their  offence.'^ 

1054.  II.  Where,  in  the  investigation  of  some  abuse  or  griev- 
ance of  a  private  character,  with  a  view  to  a  remedy  therefor  by 
way  of  legislation,  it  appears  that  offences  have  been  committed 
which  are  deserving  of  punishment,  the  house  has  not  only  given 
leave  for  bills  to  be  introduced  to  remedy  the  inconvenience  com- 
plained of,  but  has  also  directed  prosecutions  at  law.  Thus,  where 
certain  petitions  were  presented  to  the  house  of  commons  in  1695, 
complaining  that  the  petitioners,  who  were  carriers  and  wagoners, 
and  others  in  the  habit  of  travelling  the  northern  and  western 

1  According  to  Sir    Samuel    Romilly,  the  other  cases  it  proceeds  by  address.    Romilly, 

house  orders  a  pi-osecution  of  its  own  author^  300. 

Ity,  wliou  it  tliinks  thiit  a  prosecution  isneces-  *  Lords'  .Tour.  XX.  .357,  362. 

»ary,  Imt,  at  the  same  time,  that  the  propo-  '  Comm.  Jour.  XI.  63,  04,  55. 
eition  would  uot  be  aj^reeable  to  the  king;  in 


420  LEGISLATIVE   ASSEMBLIES.  [PaET    V. 

roads,  suffered  great  extortion  and  abuses  from  persons  acting  as 
informers,  and  demanding  penalties  under  a  doubtful  construction  of 
the  statute  22  Charles  II.,  for  repairing  highways  ;  and  these  peti- 
tions were  referred  to  a  committee,  who,  upon  investigation,  report- 
ed the  facts  at  length,  together  with  resolutions  that  the  petition- 
ers had  fully  proved  the  allegations  of  their  several  petitions,  and 
desen^ed  the  relief  of  the  house,  and  also  that  leave  should  be 
given  to  bring  in  a  bill  for  explaming  the  act  in  question,  and  for 
preventing  the  abuses  arising  thereby  ;  the  house  agreed  to  the  res- 
olutions, and  also  made  an  order  that  a  copy  of  the  report  should 
be  dehvered  to  the  attorney-general,  and  that  he  take  care  to  pros- 
ecute the  parties  implicated  thereby.^  So,  where  a  committee, 
which  was  appointed  to  inquire  into  the  abuses  practised  in  the 
manufacturing  of  tobacco,  reported  a  statement  of  the  facts  relating 
thereto,  the  house  thereupon  gave  leave  for  a  bill  to  prevent  frauds 
in  the  manufacture  of  tobacco,  and  also  resolved  upon  an  address 
to  the  king,  to  direct  the  attorney-general  to  prosecute  certain  per- 
sons mentioned  in  the  report,  for  the  frauds  of  which  they  were 
alleged  to  be  guilty .^ 

1055.  III.  Where,  on  inquiries  being  instituted  into  the  con- 
duct of  pubhc  officers,  or  persons  then  or  previously  in  some  pub- 
Uc  employment,  or  into  the  management  of  a  trust  of  a  public 
character,  it  is  ascertained  that  the  parties  implicated  have  been 
guilty  of  some  misconduct,  abuse,  breach  of  trust,  fraud,  or  other 
official  delinquency,  the  house  of  commons  has  directed  prosecu- 
tions to  be  mstituted  at  law,  instead  of  resorting  to  the  extraordinary 
process  of  impeachment.'^  The  following  are  examples  of  this  kind : 
In  1701,  a  committee  having  been  appointed  to  inspect  the  con- 
duct of  Edward  Whitacre,  solicitor  to  the  admiralty,  and  having 
reported  a  statement  of  the  facts  relating  thereto,  the  house  there-' 
upon  resolved  that  the  said  Edward  Whitacre  had  been  guilty  of 
divers  ill  practices,  corruptions,  and  breaches  of  trust,  in  execution 
of  his  said  employment.*  In  the  same  year,  a  petition  being  pre- 
sented from  certain  persons  in  behalf  of  themselves  and  other  mer- 
chants in  England  and  foreign  parts,  freighters  and  insurers  of  a 
certain  ship,  complaining  of  the  escape  of  a  prisoner  from  the  Fleet 
prison,  who  was  charged  therein  with  taking  out  the  goods,  and 

1  Comm.  Jour.  XL  397,  434,  513.    See,  also,     ville,  was,  in  the  first  instance,  to  direct  a 
Same,  XII.  682,  683.  prosecution  by  the  attorney-general.     Subse- 

2  Comm.  Jour.  XVIII.  421.  quently    impeachment    was    resolved    upon. 
*  The  intention  of  the  house  of  commons,      Comm.  Jour.  LX.  374,  421. 

with  regard  to  proceedings  against  Lord  Mel-         *  Comm.  Jour.  XIII.  616, 623. 


Chap.  VI.]      communications  with  public  officers.  421 

afterwards  burning  the  said  ship,  upon  which  he  had  made  great 
insurances  ;  and  the  committee  to  whom  the  petition  was  referred 
having  reported  the  facts  in  the  case ;  the  house  thereupon  resolved, 
that  the  warden  of  the  Fleet,  by  suffering  the  i)ar1y  to  escape  after 
he  was  legally  charged  in   his  custody  for  the  said  offence,  was 
guilty  of  a  notorious  breach  of  duty.^     In  the  year  1699,  the  house 
of  commons  resolved  upon  the  investigation  and  report  -of  a  com- 
mittee, that  one  Daniel  Gwyn,  who  had  been  engaged  in  several 
pubhc  employments,  had  been  guilty  of  divers  notorious  frauds 
and  extortions,  and  was  not  fit  to  be  continued  or  employed  in  any 
place  under  government.^     In  the  year  1729,  a  committee  appoint- 
ed by  the  house  of  commons  to  inquire  into  the  state  of  the  jails, 
having  made  a  report  relative  to  the  Marshalsea,  —  the  house  there- 
upon resolved  that  the  keeper,  and  another  person  to  whom  he 
had  farmed  the  gaol  and  the  profits  thereof,  were  guilty  of  inhu- 
man, cruel,  and  barbarous  treatment  of  prisoners  in  custody  for 
debt,  of  fraudulently  and  cruelly  withholding  certain  charities  from 
the  poor  prisoners,  and  of  a  high  misdemeanor  and  breach  of  trust.^ 
In  the  year  1733,  an  inquiry  was  instituted  by  the  house  of  com- 
mons, into  the  management  of  the  affairs  of  a  company  known  as 
the  charitable  corporation  for  the  relief  of  the  industrious  poor,  by 
assisting  them  with  small  sums  upon  pledges,  at  legal  interest.    The 
committee,  to  whom  the  inquiry  was  referred,  reported  that  certain 
persons  connected  with  the  management  of  the  afiairs  of  the  com- 
pany had  been  guilty  of  many  notorious  breaches  of  trust,  and  many 
indirect  and  fraudulent  practices  in  the  management  of  the  aiiairs 
of  the  said  corporation.'*     An  investigation  having  been  made  by 
the  house  of  commons  into  the  management  of  a  lottery  authorized 
by  parliament  for  the  purchase  of  the  museum  of  Sir  Hans  Sloane, 
and  for  other  purposes,  the  house  addressed  the  king  to  direct  the 
attorney-generd  to  institute  a  prosecution  against  one  of  the  com- 
missioners for  a  violation  of  the  act  and  a  breach  of  ti-ust.-^     In  all 
these  cases,  the  house  took  measures,  either  by  order  or  by  addi'ess, 
to  the  king,  for  the  prosecution  of  the  parties  implicated,  by  the 
att  orney-general. 

1056.  IV.  In  cases  of  breach  of  privilege,  which  are  also  oftcnces 
at  law,  where  the  punishment  in  the  power  of  the  house  to  inflict 
would  not  be  adequate  to  the  offence,  —  or  ^\  here  the  acts  charged 
could  not  be  investigated  by  the  house  without  greatly  delaying 

1  Comm.  Jour.  XIII.  826,  827,  828.  *  Comm.  Jour.  XXII.  137. 

*  Comm.  Jour.  XII.  680.  *  Comm.  Jour.  XXVI.  1001. 

«  Comm.  Jour.  XXI.  376,  387. 

36 


422  LEGISLATIVE  ASSEMBLIES.  [PaRT    V 

the  public  business, —  or  where,  for  any  other  cause,  the  house  has 
thought  a  proceeding  at  law  necessary,  either  as  a  substitute  for,  or 
in  addition  to,  its  own  proceeding,  the  attorney-general  has  been 
directed  to  prosecute.  Thus,  where  the  sergeant-at-arms  acquainted 
the  house  that  two  prisoners  in  his  custody  who  had  been  ordered 
the  day  before  to  be  discharged,  paying  their  fees,  had  refused  to 
pay  any  thing,  and  had  endeavored  violently  to  make  their  escape ; 
and  that  having  thereupon  sent  them  both  to  his  house,  they  had 
broken  several  doors,  and  spoiled  his  goods,  and  endeavored  forci- 
bly to  go  away,  and  had  abused,  assaulted,  and  beaten  his  servants, 
the  house  ordered  the  offenders  to  be  committed  to  the  Gatehouse, 
and  the  attorney-general  to  prosecute  them  for  their  misdemean- 
ors ;  ^  where  a  committee,  appointed  to  ascertain  how  letters  ad- 
dressed to  members  came  to  be  intercepted,  reported  that  they  had 
been  taken  out  of  the  box  every  postday  by  one  Richard  Frogatt, 
the  house  thereupon  proceeded  to  make  further  provision  for  the 
due  delivery  of  the  letters,  and  also  directed  the  attorney-general  to 
prosecute  the  offender  at  law;'^  where  it  appeared  that  the  hand- 
writing of  members  had  been  counterfeited  on  letters,  the  house 
resolved,  that  the  king  be  addressed  to  direct  the  attorney-general 
to  prosecute  at  law  such  persons  as  counterfeit  or  otherwise  fraud- 
ulently make  use  of  the  handwriting  of  members  upon  letters  in 
order  to  prevent  such  letters  from  being  charged  with  postage ;  ^ 
where  a  printed  paper  was  complained  of  and  read,  containing 
high  reflections  upon  the  honor  of  the  house  in  general,  and  in  par- 
ticular upon  one  of  the  members,  the  house  resolved  that  the  said 
paper  was  a  false  and  scandalous  libel,  and  directed  the  attorney- 
general  to  prosecute  the  person  by  whom  it  was  signed ;  *  where  a 
complaint  was  made  of  a  printed  pamphlet  which  was  brought  up 
to  the  table  and  read,  the  house  resolved,  that  the  same  was  an 
impudent,  malicious,  scandalous,  and  seditious  libel,  falsely  and 
most  injuriously  reflecting  upon  and  aspersing  the  proceedings  of 
the  house,  and  thereupon  addi'essed  the  king  to  direct  a  prosecution 
therefor  against  the  authors,  printers,  and  publis^hers,  by  the  attor- 
ney-general ;  ^  where  a  crowd  of  people  assembled  in  the  neighbor- 
hood of  the  house  and  in  the  passages  leading  thereto,  in  a  tumul- 
tuous and  riotous  manner,  and  it  appeared  that  one  John  Garrard 
had  uttered  very  insolent  words,  inciting  the  said  tumult  against 
the  members  of  the  house ;    it  was  resolved,  that  John   Garrard 

1  Comm.  Jour.  XI.  730.  ■•  Comm.  Jour.  XIIL  230. 

2  Comm.  Jour.  XII.  287,  288.  b  Comm.  Jour.  XXVL  304. 

3  Comra.  Jour.  XXIV.  394. 


Chap.  VL]      communications  with  public  officers. 


423 


hath  incited  tne  rabble  against  the  members  of  this  house,  in  viola- 
tion of  the  rights  and  constitutions  of  parliament,  —  tiiat  he  be 
committed  to  the  Gatehouse  therefor, —  and  that  the  .attorney  and 
solicitor-general  do  effectually  prosecute  him  for  his  said  offence ; ' 
and,  on  the  occasion  of  the  riots  and  tumults  in  London  and  Wesl- 
minster  in  1780,  the  house  resolved,  that  the  taking  possession  of 
the  lobby  and  the  avenues  to  the  house,  by  a  large  and  tuiiuiltuous 
assembly  of  the  people,  and  maintaining  the  same,  to  the  great 
obstruction  of  the  business  of  the  house,  was  a  high  violation  of 
the  privileges  of  the  house,  and  that  an  address  be  presented  to 
the  king,  to  direct  the  attorney-general  forthwith  to  prosecute  all 
such  persons  as  shall  be  found  to  have  been  the  instigators  or  abet- 
tors of,  or  active  in  promoting,  the  riots  in  the  old  palace  yard  and 
the  avenues  to  the  house.^ 

1057.  V.  The  purpose  of  the  trial  of  a  controverted  election  is, 
of  course,  to  determine  which  of  two  or  more  conflicting  claimants 
is  entitled  to  a  seat ;  but,  in  the  investigation  of  cases  of  this  kind, 
it  frequently  happens,  that  offences  against  the  laws  are  proved  to 
have  been  committed  by  the  parties  or  persons  in  their  interest,  for 
the  purpose  of  eifecting  or  defeating  an  election ;  and,  upon  the  facts 
being  made  to  appear  in  such  cases,  it  is  usual  for  tlie  house  to 
direct  prosecutions  to  be  commenced  at  law  by  the  attorney-general. 
Thus,  prosecutions  have  been  ordered  in  cases,  in  which  it  appeared 
to  the  house,  that  there  had  been  illegal  and  indirect  practices,  in  a 
certain  borough,  to  examine  persons  upon  oath,  and  to  take  affida- 
vits, in  relation  to  the  evidence  they  were  to  give  at  the  bar  of  the 
house,  touching  the  election  therein ;  ^  that  a  party  had  been  guilty 
of  bribery  and  corruption,  in  procuring  an  election  of  a  burgess;* 
that  a  candidate  had  been  guOty  of  bribery  and  coiTuption  in  en- 
deavoring to  procure  himself  to  be  elected  ;  ^  that  another  had  been 
guUty  of  corrupt,  scandalous,  and  indirect  practices,  in  endeavoring 
to  procure  himself  to  be  elected,  and  for  promoting  a  scandalous, 
villanous,  and  groundless  reflection  upon  the  last  house  of  com- 
mons ;''  that  certain  persons  had  been  guilty  of  an  illegal  and  cor- 
rupt conspiracy  in  relation  to  an  election  ;  <■  that  certain  persona 
were  principal  promoters  and  suborners  of  corrupt  and  willul  per- 
jury committed  at  an  election  ;**  that  there  were  strong  grounds  for 


»  Coinm.  .Tour.  XIIT.  230,  231. 

*  Comm.  Jour.  XXXVII.  902. 

*  Coinra.  Jour.  XIII.  383. 

*  Comm.  Jour.  XIII.  C40. 


6  Comm.  Jour.  XITI.  711. 
'  Comm.  Jour.  XIII.  735. 
»  Comm.  Jour.  XXXHI.  179. 
•  Comm.  Jour.  XXXV.  538. 


424  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

believing  that  a  witness,  in  giving  his  evidence  before  an  election 
committee,  had  been  guilty  of  wilful  and  corrupt  perjury .^ 

1058.  In  some  cases  the  house  has  thought  proper  to  direct 
prosecutions  to  be  instituted  by  the  attorney-general,  for  offences 
not  referring  particularly  to  the  house,  or  brought  to  hght  in  the 
coui-se  of  any  parHamentary  investigation,  but  in  general  affecting 
the  o-overnment ;  as,  for  example,  for  libels  on  the  constitution,^  on 
the  king's  government  and  person,'^  on  the  king  and  government;* 
for  high  treason  of  which  a  member  had  been  guilty  before  his 
election,  and  for  which  he  had  been  expelled.^ 

1059.  The  above-mentioned  cases  are 'given  merely  as  examples 
of  the  duties,  which  the  two  houses  of  parliament  may  require  of 
the  attorney  and  solicitor-general,  in  the  prosecution  and  punish- 
ment of  offences.  There  are  also  other  occasions  on  which  the 
services  of  those  officers  have  been  required;  thus,  in  the  course  of 
the  proceeding  wliich  terminated  in  the  impeachment  of  Lord 
Melville,  the  attorney-general  was  directed  to  take  measures  for 
ascertaining  and  recovering  any  sums  that  might  be  due  to  the 
public  from  Lord  Melville  or  Alexander  Trotter,  in  respect  of 
profits  derived  by  them  from  moneys  issued  for  naval  purposes ;  ^ 
and  when  actions  were  brought  by  Sir  Francis  Burdett  against  the 
speaker  and  sergeant-at-arms  for  arresting  him  on  a  speaker's  war- 
rant issued  by  order  of  the  house,  the  attorney-general  was  dkected 
to  defend  the  actions.'  Under  this  head,  must  be  mentioned  those 
cases,  in  which  the  two  houses  have  thought  proper  to  express  their 
opinion  of  books,  pamphlets,  or  other  printed  papers  by  ordering 
them  to  be  publicly  burnt  by  the  common  hangman.^ 

1060.  AVhen  state  prosecutions  are  carried  on  in  parliament,  in 
the  form  of  bills  of  attainder,  or  bills  of  pains  and  penalties,  or  when 
other  bills  of  analogous  character  are  pending,  the  attorney  and 
sohcitor-general  are  required  to  act  as  counsel  in  support  of  the 
proceedings.  When  bills  to  inflict  pains  and  penalties  on  George 
Kelly,  John  Plunkett,  and  the  bishop  of  Rochester,  were  pending  in 
the  house  of  commons,  in  1722 ;  ^  to  make  void  contracts  for  the 

1  Comm.  Jour.  LXXV.  332.  arms  of  the  house  of  representatives  in  con- 

«  Comm'.  Jour.  xVxi  V.  464.  gress,  for  arresting  the  ph.intitf  on  a  speaker'3 


3  Comm.  Jour.  XXXII.  828.  warrant,    the    liouse   directed  the   attorney- 

*  Comm.  Jour.  XIX.  562.  general  to  defend  the  action. 

»  Comm.  Jour.  XVIII.  467.  «  Comm.  .lour.  VIII.  259,  400;    Same,  X. 

•  Comm.  Jour.  LX.  221.  786,  787;  Same,  XII.  28,  224,  572;  Same,  XL 
1  Comm.  .Jour.  LXV.  355.     In  the  case  of  667,  668. 

Anderson  v.  Dunn,  (Wheaton's  Reports,  VI.)  »  Comm.  Jour.  XX.  180,  183, 186. 
which  was  an  action  against  the  sergeant-at- 


Chap.  VI.]      communications  with  public  officers.  425 

Bale  of  the  earl  of  Derwentwatcr's  estate,  in  1723  ;  ^  and  to  disable 
Alexander  Wilson  from  holding?  any  office  in  Edinburgh,  etc.,  in 
1737  ;  ^  the  attorney  and  solicitor-general  were  directed  to  take 
care,  that  the  evidence  against  the  parties  should  be  ready  to  he 
produced  to  the  house  on  the  day  appointed  for  the  second  reading ; 
and  the  attorney-general  was  ordered  to  appoint  counsel,  learned  in 
the  law,  to  produce  and  manage  the  evidence  at  the  bar  of  ihe  house 
on  the  hearing.  In  the  house  of  lords,  notice  was  ordered  to  be 
given  to  the  attorney-general  of  the  orders  of  the  house  relative  to 
the  said  bills;  "in  order,"  as  expressed  in  one  instance,  "  for  them 
to  appoint  counsel  to  methodize  the  evidence  to  be  given  in  sup- 
port of  the  allegations,  and  to  produce  and  examine  Ihe  witnessea 
with  relation  thereto."  ^  A  bill  to  inflict  pains  and  penalties  upon 
Sir  Thomas  Rumbold  and  Peter  Perring,  being  before  the  house  of 
commons  in  1782,  the  house  directed  the  attorney-general  to  pro- 
vide counsel  to  produce  and  manage  the  evidence  on  the  second 
reading.^ 


Section  III.     Publishing   or  distributing   the   Orders   of  the 

House. 

1061.  It  is  the  constant  usage  of  the  house  of  com.mons  to  direct 
the  sheriffs  to  give  notices  to  the  members  within  their  several 
counties  of  the  orders  of  the  house  requiring  their  attendance  ;  as, 
that  the  speaker  be  desired  to  send  his  letters  to  the  several  sheriffs, 
with  a  particular  order  of  the  house  inclosed,  for  the  members' 
attendance  at  the  meeting  of  the  house  after  Christmas ;  °  that  the 
house  be  called  over  on  a  particular  day,  and  that  every  member 
who  shall  then  make  default  of  attendance,  whose  excuse  shall  not 
be  allowed  by  the  house,  shall  be  doubly  assessed  in  the  bill  of 
subsidies,  and  that  notice  of  this  vote  be  sent  by  the  clerk  to  the 
sheriffs  of  the  several  counties,  to  be  by  them  communicated  to  such 
members  of  parliament  in  each  county  as  are  concerned ;  "^  that  the 
clerk  prepare  letters  to  be  signed  by  the  speaker,  to  be  sent  to  the 
sheritls,  requhing  them  to  signify  to  all  the  members  that  serve  for 
the  places  within  their  respective  counties,  that  they  give  their 
attendance  on  a  particular  day  mentioned,  and  that  the  house  is  to 

1  Coram.  Jour.  XXL  89L  *  Comm.  Jour.  XXX YIH.  IOC 4. 

«  Comm.  Jour.  XXIL  887.  *  Comm.  Jour.  IX.  42. 

»  Lords'  Jour.   XXIL   144;  Same,  XXIV.         «  Comm.  Jour.  IX.  1S7.  463. 
111b.;  Same,  XXV.  75  a. 

36* 


426  LEGISLATIVE  ASSEMBLIES.  [PaRT  V 

be  called  over  the  day  following,  at  which  time,  such  as  shall  be 
absent  will  incur  the  displeasure  of  the  house ;  ^  that  the  speaker 
wri^e  letters  to  the  sheriffs  of  the  respective  counties,  to  summon 
the  members  of  the  house  now  in  the  country,  to  attend  their  ser- 
vice in  parUament,  on  a  day  named,  notwithstanding  any  leave  of 
absence,  and  that  such  as  shall  not  then  attend  shall  be  sent  for  in 
custody  of  the  sergeant-at-arms.-     Sometimes,  the  order  is  directed 
to  other  officers  besides  the  sheriffs ;  as,  that  the  speaker  be  desired 
to  send  his  letters  to  the  several  sheriffs  of  the  respective  counlies, 
and  to  the  several  mayors,  bailiffs,  and  other  proper  officers  in  the 
several  cities,  boroughs,  corporations,  and  cinque-ports,  requiring 
them  to  give  notice  to  all  such  members  of  this  house  that  serve  for 
such  respective  places,  as  have  absented  themselves  from  the  ser- 
vice of  the  house  without  leave,  to  attend  the  house  within  ten 
days.3    The  ckcular  letters  of  the  speaker  require  the  sheriffs  to  give 
an  account  of  the  receipt  of  the  letters,  and  of  what  they  do  there- 
upon, to  the  speaker.*     Sometimes  the  house  directs  that  its  orders 
Df  a  different  kind  shall  be  sent  to  the  sheriffs  and  others,  by  way 
of  publishing  them,  as,  where  the  house  of  commons  directed  that 
printed  copies  of  the  standing  orders  of  the  house  respecting  private 
bills  should  be  sent  to  the   sheriffs  and  clerks  of  the  peace  of  the 
several  counties  of  England  and  Ireland,  to  be  by  them  severally 
preserved  in    and  for  the  use   of  their  respective  counties.^     So, 
where  the  house  having  agreed  upon  certain  resolutions  relative  to 
the  trial  and  determination  of  controverted  elections,  and  having 
ordered  the  same  to  be  standing  orders  of  the  house,  directed  the 
speaker  to  send  copies  thereof  to  the  sheriffs  of  the  several  counties, 
to  be  by  them  communicated  to  the  chief  officers  of  the  several 
cities,  corporations,  and  boroughs,  sending  members  of  parliament, 
in  their  respective  counties.'^     The  foregoing  examples  will  be  suffi- 
cient to  give  an  idea  of  the  manner  in  which  the  two  houses  avail 
themselves  of  the  services  of  sheriffs  and  other  officers  for  the  dis- 
semination of  their  orders. 


Section  IV.    Rendering  Assistance  to   the    Officers   of   the 

House. 

1062.    It  is  the  duty  of  the  sergeant-at-arms  and  his  assistants  to 
execute  the  commands  of  the  house,  in  taking  offenders  and  othera 

1  Comm.  Jour.  IX.  464.  *  Coram.  Jour.  XI.  111. 

a  Comm.  Jour.  XI.  Ill ;  Same,  LXVL  3.  ^  Coram.  Jour.  LXVI.  444. 

«  Coram.  Jour.  IX.  672.  *  Coram.  Jour.  XV.  551. 


Chap.  VI.j      communications  with  public  officers.  427 

into  custody,  in  summoning  witnesses,  and  also  in  keeping  order  in 
tlie  house  itself,  and  in  the  lobby,  and  passages  leading  thereto ; 
but,  if  there  be  occasion,  the  house  may  call  in  other  ofhcers  to  his 
assistance.  Thus,  when  in  the  year  1678,  the  house  of  commons 
ordered  Oates  to  be  sent  for  to  give  in  his  testimony  at  the  bar  of 
the  house,  touching  the  plot  and  conspiracy  mentioned  in  Ihe  king's 
speech,  it  was  ordered,  at  the  same  time,  that  the  sergeant-at-arms 
go  with  his  messengers  and  bring  IVIr.  Oates  to  the  bar  of  the  house ; 
and  all  constables  and  other  officers  and  persons  whatsoever  were 
required  to  be  aiding  and  assisting  him  therein,  if  need  require  ;  ^ 
where  the  house  had  previously  issued  an  order  to  the  sergeant-at- 
arms  to  send  for  certain  persons  in  custody,  for  a  breach  of  privi- 
lege, one  of  whom  refused  admittance  to  the  deputies  of  the  ser- 
geant, and  spoke  shghting  and  contemptuous  words,  touching  the 
warrant ;  the  house  thereupon  ordered,  that  the  party  in  question 
be  sent  for  in  custody,  as  a  delinquent ;  that  the  sergeant-at-arms 
be  empowered  to  break  open  his  house  in  case  of  resistance,  and 
also  to  bring  in  custody  all  such  as  shall  make  opposition  therein  ; 
and  to  call  to  his  assistance  the  sheriff  of  Middlesex,  and  all  other 
officers  as  he  shall  see  cause,  who  were  required  to  assist  him 
accordingly ;  '^  where  the  house  ordered  certain  books  and  pamphlets 
to  be  burnt  by  the  hands  of  the  common  hangman,  and  dkecTed  the 
sergeant-at-arms  to  see  that  the  order  was  executed,  the  sheriffs  of 
London  and  Middlesex  were  also  ordered  to  lend  their  assistance.^ 
The  house  has  several  times  ordered  the  sergeant-at-arms,  to  keep 
the  stairs  and  passages  to  the  house  free  from  disturbance  of 
lacqueys  and  footmen,  to  take  into  custody  any  lacquey  or  footman 
remaining  or  standing  on  the  stairs,  and,  at  the  same  time,  directed 
the  officers  of  the  knight  marshal  to  assist  the  sergeant  in  the  exe- 
cution of  the  order.*  So,  where  in  consequence  of  the  presence  of 
a  tumultuous  crowd  of  people,  in  the  lobby,  the  yeas  on  a  division 
were  unable  to  go  forth,  and  the  sergeant-at-arms  informed  the 
house,  that  it  was  not  in  his  power  to  clear  the  lobby ;  the  speaker 
directed  him  to  send  for  the  sheriff  and  other  magistrates  of  Middle- 
sex and  Westminster  to  attend  the  house  immediately ;  who, 
attending  accordingly,  were  directed  by  the  speaker  to  use  their 
utmost  exertions  to  restore  peace  and  good  order ;  which  they  suc- 
ceeded in  doing,  and  the  division  took  place.^ 

1  Coram.  Jour.  IX.  619.  ••  Comm.  Jour.  IX.  249,  318,  386;    Same, 

»  Comm.  Jour.  VHI.  222.  VHI.  253. 

•  Comm.  Jour.  XI.  28,  224,  572.  »  Comm.  Jour.  XXXVII.  961. 


428  LEGISLATIVE   ASSEMBLIES.  [PaRT    V, 


Section  V.    Preservation  of  the   Peace  in  the  Place  where 

THE   PaRLIAJVIENT   IS   SITTING. 

1063.  The  existence  of  any  external  restraint,  operating  upon  the 
two  houses  of  parliament,  is  so  inconsistent  with  the  freedom  and 
independence  which  are  essential  to  the  proper  exercise  of  their 
func  ions,  that,  if  continued  for  any  length  of  time,  it  would  become 
as  revolutionary  and  destructive  of  the  constitution  (though  in  a 
different  way,)  as  the  forcible  ejection  of  the  members  by  a  military 
force.  Hence  it  is  deemed,  according  to  the  law  and  usage  of  par- 
liament, to  be  a  high  crime  and  misdemeanor,  for  any  number  of 
persons  to  come  to  either  house  in  a  riotous,  tumultuous,  or  dis- 
orderly manner,  for  the  purpose  of  hindering  or  promoting  the  pass- 
ing of  any  measure  there  depending.^  In  order  to  protect  them- 
selves against  any  influences  of  this  kind,  the  two  houses  are  clothed 
with  authority,  which  they  have  always  exercised  when  occasion 
required,  to  call  upon  the  magistrates  and  other  peace-officers  of 
the  place  where  they  are  sitting ;  who  are  then  especially  obliged 
to  restore  order,  and  to  preserve  the  public  peace,  by  means  of  the 
exercise  of  their  ordinary  official  functions.'^  Thus,  in  1696.  a 
tumultuous  crowd  of  people  coming  into  the  Palace  yard,  and  West- 
minster Hall,  and  passages  towards  the  house  of  commons,  and  into 
the  lobby  of  the  house,  the  house  ordered  that  the  justices  of  the 
peace  of  IVIiddlesex  and  Westminster,  and  Southwark,  and  mem- 
bers for  the  city  of  London,  do  go  and  endeavor  to  disperse  the 
said  multitude,  and  that  the  sheriffs  and  justices  of  the  peace  of 
London  and  ]VIiddlesex  do  immediately  attend  the  house  for  the 
same  purpose ;  ^  in  1699,  on  the  occasion  of  a  similar  tumultuous 
assembling  of  persons  about,  the  house  of  commons,  it  was  ordered, 
that  the  justices  of  the  peace  of  IVIiddlesex  and  Westminster  do  go 
forth  and  disperse  the  said  riotous  crowd,  and  that  the  justices  of 
the  peace  of  the  city  of  Westminster  do  immediately  attend  the 
house  and  bring  the  constables  with  them ;  and  they  attending 
accordingly  were  called  in,  and,  at  the  bar,  the  speaker,  by  order  of 
the  house,  acquainted  them  with  the  said  tumultuous  riot ;  and  that 
the  house  did  expect,  that  they  should  go  immediately  and  disperse 
the  same,  and  give  the  house  an  account  of  what  they  did  therein; 
and  that  they  do  commit  such  as  they  find  most  active  in  the  said 

1  Comm.  Jour.  XI.  G07 ;  Same,  XIIL  230.  »  Comm.  Jour.  XI.  667. 

2  Lords'  Jour.  XXXII.  188. 


Chap.  VI.]      communications  witu  public  officers.  429 

riot,  and  take  care  to  prevent  any  such  riots  for  the  time  to  come ; ' 
in  1714,  the  house  of  commons  being  informed,  that  a  crowd  of 
people  had,  for  several  days  past,  appeared  together  in  a  tumultu- 
ous and  riotous  manner,  in  the  Palace  yard,  Westminster  Hall,  and 
the  passages  leading  to  tiic  house  ;  it  was  ordered,  that  the  sheriffs 
of  London  and  Middlesex,  and  the  high  bailiff"  of  the  city  of  West- 
minster, do  take  care  to  disperse  any  disorderly  assembly  of  persons, 
crowding  to  the  places  above  mentioned,  and  to  prevent  any  such 
tumultuous  resort  for  the  future  ;2  again,  in  1771,  on  the  occasion 
of  the  proceedings  against  Brass  Crosby  the  lord  mayor  of  London, 
the  house  was  beset  by  a  tumultuous  crowd  of  people,  who  inter- 
rupted the  members  in  their  coming  into  the  house,  and  similar 
measures  were  resorted  to  for  dispersing  the  crowed  and  clearing  the 
passages  ;  '■^  and  lastly,  when  during  the  riots  in  1780,  the  lobby  of 
the  house  of  commons  was  filled  by  a  tumultuous  cro\\ d,  A\hich 
the  sergeant-at-arms  was  unable  to  disperse,  so  as  to  enable  the 
yeas  to  occupy  it  on  a  division,  the  speaker  directed  him  to  send 
for  the  sheriff  and  other  magistrates  of  the  county  of  Middlesex 
and  city  of  Westminster  to  attend  the  house  immediately  ;  and,  on 
their  attending  at  the  bar,  informed  them,  that  a  tumultuous  assem- 
bly of  people  had  surrounded  the  house,  and  rendered  it  very  diffi- 
cult for  the  members  to  come  into  or  go  out  of  the  house,  which 
disorder  had  continued  for  many  hours ;  that  it  was  their  duty  to 
preserve  the  peace ;  and  for  that  purpose  they  had  authority  to  call 
forth,  if  necessary,  the  whole  power  of  the  county  to  their  assist- 
ance ;  the  speaker  therefore  directed  them  to  use  their  utmost 
exertions  to  restore  peace  and  good  order.*  Several  occasions  have 
occurred,  on  which  similar  proceedings  have  taken  place  in  the 
house  of  lords.^ 

1064.  Besides  looldng  to  the  local  magistrates  for  protection 
against  those  tumultuous  and  riotous  assemblages,  which  are  sub- 
versive of  the  freedom  and  independence  of  parliament,  the  two 
houses  have  for  a  long  time  been  in  the  practice  of  availing  them- 
selves of  the  same  authorities,  for  the  preservation  of  order  and 
quiet  in  the  neighborhood  of  their  place  of  sitting,  and  for  securing 
a  free  and  unobstructed  passage  for  the  members  to  and  from  the 
two  houses.*^     In  1709,  orders  were  first  made  in  the  house  of  com- 

1  Comm.  Jour.  XIH.  230.  Same,  XXXII.  147  b.,  187  b.;  Same,  XXXVL 

»  Comm.  Jour.  XVII.  G61.  142  b. 

«  Comm.  Jour.  XXXIII.  285.  «  Resolved,  "that  according  to  the  known 

*  Coma.  Jour.  XXXVII.  901.  laws  and  usage  of  parliament,  it  is  the  un- 

»  Lords'  Jouv.  XXXI.  206,  207,  209,  218;  doubted  right  and  duty  of  the  peers  of  Great 


430  LEGISLATIVE   ASSEMBLIES.  [PaRT  V. 

mons  requiring  the  constables  and  other  officers  of  Middlesex  and 
Westminster  1  to  take  care,  that  during  the  session  of  parliament, 
the  passage  through  the  streets  between  Temple  Bar  and  West- 
minster Hall  be  kept  free  and  open,  and  that  no  obstruction  be 
made  by  cars,  drays,  carts,  or  otherwise,  to  hinder  the  passage  of 
the  members  to  and  from  the  house  ;  that  the  constables  in  waiting 
take  care  that  there  be  no  gaming  or  other  disorders  in  West- 
minster Hall,  and  that  there  be  no  annoyance  by  chairmen,  foot- 
men, or  otherwise,  therein,  or  thereabouts.-  These  orders  were 
renewed  in  succeeding  sessions,"^  and  are  now  regularly  adopted  at 
the  commencement  of  every  session.^  Similar  orders  are  made 
also  in  the  house  of  lords,  with  respect  to  keeping  the  passages 
leadin":  to  the  house  free  from  obstruction.^ 


Section  VI.     Right   of  the   House   of   Lords  to  call   on  the 
Judges  to  give  their  Opinions  on  Questions  of  Law. 

1065.  In  the  house  of  lords,  the  judges  of  the  courts  of  king's 
•  bench  and  common  pleas,  such  barons  of  the  exchequer  as  are  of 
the  degree  of  the  coif,  the  master  of  the  rolls,  the  attorney  and 
solicitor-general,  and  the  king's  sergeant-at-law,  attend,  as  assistants. 
This  attendance,  which  was  formerly  enforced  at  all  times,  is  now 
only  occasional,  when  summoned  by  a  special  order.  The  princi- 
pal pm-pose  of  the  attendance  of  the  judges  is,  to  give  their  opinions 
on  questions  of  law,  when  demanded  of  them  by  the  house,  with 
reference  to  all  subjects  there  pending  whether  of  a  judicial  or 
legislative  character.  They  deliver  their  opinions,  either  separately,. 
or  by  the  mouth  of  one  of  their  number,  and  either  with  or  without 
reasons,  according  to  circumstances.  The  usual  course  is,  for  the 
house,  on  motion,  to  order  that  certain  questions  be  proposed  to  the 
judges,  and  that  they  be  summoned  to  attend  to  give  their  answers 
at  a  particular  time  ;  which  may  be  enlarged  at  the  request  of  the 
judges,  or  for  the  convenience  of  the  house ;  but,  if,  in  the  mean 
time,  a  prorogation  takes  place,  the  order  is  discharged,  and  must 
be  renewed  in  the  next  session,  if  the  opinions  of  the  judges  are 

Britain,  in  parliament  assembled,  to  give  such         i  It  is  hardly  necessary  to  remark  that  the 

orders  as  may  from  time  to  time  be  fmmd  parliament  was  sitting  witliin  tiie  city  of  West." 

necessary  to  disperse  or  suppress  any  force  minster  and  county  of  Middlcjfex. 

which  shall  obstruct  their  coming  to,  remain-         ^  Comm.  Jour.  XVI.  2i;i. 

ing  in,  or  returinng  peaceably  from,  this  house,         "  Comm.  Jour.  XVII.  3,  270,  476. 

or  tend   to  interrupt  the  freedom  of  pnrlia-         *  Comm.  .Jour.  LXXV.  C,  110. 

mentary  proceedings."     Lords'  Jc^.ir.  XXXIL         ''  Lords'  Jour.  LXVl.  0,  7. 

1*(8. 


Chap.  VL]       communications  with  public  officers.  431 

still  desired.'  There  appears  to  be  but  a  single  exception  to  the 
questions  to  which  answers  may  be  demanded  of  the  judges, 
namely,  a  question  of  privilege,  in  reference  to  which  the  judges 
declined  to  answer  in  Thorpe's  case,  in  the  31  Henry  VL,  and  to 
which  they  have  never  since  been  interrogated.  The  reasons  given 
by  the  judges  are  thus  expressed :  "  For  it  hath  not  been  used 
aforetime,  that  1he  justices  should  in  anywise  determine  the  privi- 
lege of  tliis  high  court  of  parliament ;  for  it  is  so  high  and  so  mighty 
in  this  nature,  that  it  may  make  law,  and  that  that  is  law,  it  may 
make  no  law  ;  and  the  determination  and  knowledge  of  that  privilege 
belongfth  to  the  lords  of  the  parliament,  and  not  to  the  justices."  ^ 
The  principle,  embodied  in  these  reasons,  namely ;  that  privilege 
of  parliament  is  what  eilher  house  declares  to  be  so,  has  been  very 
strongly  questioned,  if  not  exploded,  in  modern  times ;  and  as  the 
doctrine  is  now  held,  that  the  law  of  parliament  is  part  of  the  law 
of  the  land,  and  cognizable  on  proper  occasions  by  the  courts  of 
law ;  it  may  perhaps  be  doubted,  whether,  if  the  house  of  lords 
should  now  propound  a  question  relative  to  the  law  of  privilege, 
the  judges  would  not  feel  themselves  bound  to  answer. 


Section  VII.    Right  to  refer  Matters  to  Public  Officers. 

1066.  The  house  of  commons  exercises  the  right  to  refer  a  mat- 
ter pending  before  it  to  some  public  officer,  or  board,  for  a  particu- 
lar purpose.'^  The  same  authority  is  exercised  by  the  house  of 
representatives  in  congress  when  it  refers  petitions  to  the  investiga- 
tion of  the  heads  of  departments  or  the  attorney-general.  This 
practice  was  much  more  common  formerly  than  it  has  been  of  late 
years.  A  petition  being  referred  in  this  manner  to  the  attorney- 
general,  on  the  28th  of  January,  1820,  with  a  request  to  that  officer 
"  to  report  his  opinion  thereupon  "  to  the  house,  he  declined  com- 
plying with  the  request,  and  returned  the  petition  and  papers  to  the 
house  of  representatives,  on  the  ground  that  it  did  not  come  within 
the  duties  of  his  office  as  prescribed  by  law,  to  act  in  the  same 
relation  of  legal  counsellor  to  the  house,-  which  he  held  towards  the 
president  and  heads  of  the  departments."*  Since  this  communica- 
tion, the  practice  of  referring  petitions  to  the  attorney-general 
appears  to  have  been  discontinued. 

1067.  In  these  cases,  the  petitions,  referred  to  public  officers,  ai"e 

»  Hans.  (1),  VI.  167.  a  May,  511,  527;  Comm.  Jouv.  XCH.  356.  417,  5Ift. 

•  Comm.  Jour.  X.  402.  ■•  Attorneys-General's  Opinions,  242. 


432  LEGISLATIVE    ASSEMBLIES.  [PaRT   V 

reported  upon  by  them,  and  their  reports  are  then  referred,  with  the 
petitions  to  which  they  relate,  to  the  appropriate  committees,  who 
consider  and  report  thereon,  in  the  usual  manner.  Petitions  are 
also  sometimes  referred  to  the  president  of  the  United  States  ;  ^  but 
this  reference  apparently  takes  place,  not  that  such  petitions  may 
be  reported  iTpon,  but  because  they  belong  more  properly  to  his 
cognizance ;  as  for  example,  where  a  number  of  citizens  presented 
a  memorial  to  congress  praying  a  remission  of  the  punishment 
inflicted  on  William  L.  Mackenzie  for  a  violation  of  the  neutrality 
laws  of  the  United  States.^ 


CHAPTER    SEVENTH. 

OF   PETITIONS. 


Section  I.    Of  the  Right  of  Petition. 

1068.  It  is  chiefly  by  means  of  petitions,  that  the  people,  in  their 
character  of  constituents,  are  brought  into  communication  with  the 
two  houses  of  parUament,  and  especially  with  the  house  of  com- 
mons, as  their  representatives.  So  far  as  the  legislative  body  is 
elective,  so  far  the  constituents,  by  their  votes  for  particular  can^ 
didates,  express  their  opinion  of  public  measures  and  policy.  In 
certain  cases,  also,  and  to  a  certain  extent,  and  for  particular  pur- 
poses, they  have  the  power  to  instruct  their  representatives.  But 
neither  of  these  modes  of  communication  is  adequate  to  all  the 
occasions,  on  which  it  is  desirable  that  the  wishes  of  constituents 
should  be  made  known  to  their  representatives.  Petitions  alone 
enable  constituents  to  resort  to  the  representative  body,  whenever, 
In  the  judgment  of  any  one  or  more  of  them,  it  is  necessary  or 
proper  to  do  so,  with  reference  to  any  matter  either  of  a  public  or 
private  nature,  which  is  within  the  jurisdiction  and  functions  of  the 
legislature. 

1069.  A  petition  is  an  instrument  in  writing,  addressed  by  one 
Dr  more  individuals  to  some  public  tribunal  or  authority,  in  which, 

»  J.  of  H.  V.  560;  Cong.  Globe,  Vin.  292.         «  Cong.  Globe,  Vm.  292. 


Chap.  VII.]  petitions.  433 

on  the  ground  of  certain  facts  therein  set  forth,  the  petitioners 
request  the  official  interference  of  such  tribunal  or  authority,  either 
for  the  particular  advantage  of  the  petitioners,  or  for  the  correction 
of  some  puljlic  grievance. 

1070.  When  the  object  of  a  petition  is  the  particular  benefit  of 
the  petitioner,  it  is  a  private  petition  ;  when  it  is  for  the  redress  of 
some  public  grievance,  in  which  the  petitioner  has  no  particular  or 
individual  concern,  the  petition  is  a  public  one. 

1071.  In  both  cases,  a  petition  may  emanate  from  a  single  indi- 
vidual ;  or  it  may  be  the  act  of  as  many  persons  as  have  a  common 
interest  in  the  subject,  and  are  willing  to  unite  together  for  the  pur- 
pose of  prosecuting  it ;  or  there  may  be  as  many  separate  petitions 
relating  to  the  same  subject,  as  there  are  individuals;  or  there  may 
be  several  similar  petitions,  each  signed  by  several  persons. 

1072.  The  right  of  subjects  to  petition  then:  rulers  for  a  redress 
of  grievances,  either  public  or  private,  is  acknowledged  as  a  funda- 
mental principle  of  the  English  constitution,  and  has  been  uninter- 
ruptedly exercised  from  the  earliest  periods.  The  right  to  address 
the  two  houses  of  parliament  in  this  manner  is  coeval  with  their 
existence ;  but  especially  have  petitioners  applied  themselves  to  the 
house  of  commons,  who,  as  the  more  immediate  representatives  of 
the  people,  have  always,  in  the  forcible  language  of  INIr.  Speaker 
Abbott,  "  opened  their  doors  wide  for  receiving  the  petitions  of  aU 
his  majesty's  subjects,  with  respect  to  grievances,  whether  real  or 
imaginary."  ^  This  right  rests  on  no  wTitten  charter,  like  that  of 
petitioning  the  crown ;  but,  as  was  said  by  Mr.  Fox,  "  No  man 
could  question  the  subjects'  right  to  present  petitions  to  their  repre- 
sentatives ;  because,  it  was  idle  to  suppose,  that  when  a  stipulation 
had  been  made  by  the  bill  of  rights  that  the  subjects  should,  in 
all  cases,  have  a  right  to  petition  the  crown,  they  had  not  an  equal 
right  to  petition  the  house  of  commons,  their  own  representatives."  ^ 
The  right  of  petition  is  stated  in  the  following  terms  by  INIr.  Hat- 
sell: —  "To  receive,  ;uid  hear,  and  consider  the  petitions  of  their 
feUow-subjects,  when  presented  decently  and  containing  no  matter 
intentionally  offensive  to  the  house,  is  a  duty  incumbent  on  them, 
antecedent  to  all  rules  and  orders  that  may  have  been  instituted  for 
their  own  convenience.  Justice  and  the  laws  of  their  country 
demand  it  from  them."  ^ 

1  Hans.  (1),  Vin.  529.  Robert  C.  Winthrop,  in  the  house  of  represen- 

»  Pari.  Re?.  XXHI.  113.  tives  of  the  United  Statts  on  the  23d  and  24th 

»  Hatsell,  III.  240.     As  to  the  right  of  peti-  January,  1844. 
Hon,  in  general,  see  also  the  speech  of  the  Hon. 

37 


434  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

1073.  There  can  be  no  doubt,  that,  in  this  country,  the  right  of 
petition  is  as  sacred,  and  as  well  established,  as  it  is  in  England, 
even  whero  it  is  not  secured  by  constitutional  provisions.  But  in 
all  the  American  constitutions,  except  those  of  the  States  of  Vir- 
ginia, Nonh  Carolina,  Sovith  Carolina,  Georgia,  and  Louisiana,  it 
is  secured  in  the  amplest  manner,  usually  in  the  following  terms 
contained  in  the  constitution  of  Florida,  namely:  —  "The  people 
have  a  right,  in  a  peaceable  manner,  to  assemble  together  to  consult 
for  the  common  good ;  and  to  apply  to  those  invested  with  the 
powers  of  government  for  redress  of  grievances,  or  other  proper 
purposes,  by  petition,  address,  or  remonstrance." 

1074.  It  is  with  respect  to  measm-es  of  a  public  character,  that 
the  right  of  petition  has  been  deemed  the  most  sacred,  and  has  been 
guarded  with  the  most  care ;  as  it  is  by  this  means  only  that  con- 
stituents can  express  their  opinions  upon  great  national  questions, 
and  bring  their  opinions  to  bear  directly  upon  the  legislative  power. 
Petitions  of  this  description  do  not  rest  upon  the  testimony  of  wit- 
nesses for  their  facts ;  nor  do  they  trust  to  the  ability  and  eloquence 
of  counsel  for  their  arguments  and  illustrations.  They  are  simply 
to  be  regarded  as  expressing  the  deliberate  convictions  of  the  peti- 
tioners, upon  facts  which  are  notorious  or  accessible  to  aU,  and 
founded  in  arguments  and  considerations  which  appeal  to  the 
reason  and  judgment  of  all. 

1075.  The  legitimate  effect,  therefore,  of  their  representations, 
depends  upon  two  considerations,  namely,  the  influence  "w^hich 
popular  opinion  is  entitled  to  have  upon  the  acts  of  government, 
and  upon  the  facts  and  arguments  which  petitioners  bring  forward 
in  support  of  their  opinions.  These  are  interesting  topics  of  inquiry, 
which,  however,  it  would  be  out  of  place  to  consider  in  this  treatise, 
any  further  than  may  be  necessary  to  determine  what  proceedings 
ought  to  take  place  with  reference  to  public  petitions,  in  order  that 
they  may  have  their  proper  effect.^  So  far,  then,  as  the  first  ground 
is  concerned,  it  is  important  to  know  the  number,  the  character,  and 
the  situation  and  circumstances  of  the  petitioners ;  the  degree  of 
deliberation  with  which  their  opinions  have  been  formed ;  the  abil- 
ity which  they  possess  for  judging  of  the  subject;  the  means  that 
have  been  resorted  to  for  obtaining  their  signatures ;  the  freedom 
or  constraint  with  which  they  may  have  acted  ;  and  to  have  regard, 

1  Assuming  that  the  object  of  government  less  influence  the  popular  opinion,  as  distin- 

18  the  good  of  the  ppople,  it  n^ght  be  said,  not  guishcd  from  the  government,  ought  to  have 

less  truly  than  paradoxically,  that  the  more  upon  the  representatives,  and  vice  versa, 
popular  the  character  of  the  government,  the 


Chap.  VIL]  petitions.  435 

also,  to  the  nature  of  the  subject,  as  being  one  upon  which  discus- 
sion by  an  intelligent  and  conscientious  body  of  representatives  can 
throw  much  or  little  light.  In  regard  to  the  second  ground,  —  the 
facts  and  arguments  adduced  by  petitioners,  —  they  are  of  equal 
weight,  and  are  consequently  entitled  to  equal  influence,  whether 
the  petitioners  be  few  or  many,  and  whatever  may  be  their  condi- 
tion or  circumstances. 

1076.  If  the  views  above  expressed  are  correct,  it  is  manifest, 
that  the  right  of  petition  on  the  part  of  constituents  requires  noth- 
ing more,  as  a  matter  of  parliamentary  duty,  on  the  part  of  repre- 
sentatives, than  that  they  should  receive  all  proper  petitions,  and 
should  allow  the  contents  to  be  brought  to  their  knowledge,  in  the 
fullest  manner.  If  any  thing  further  than  this  is  demanded,  —  if  it 
is  urged,  that  the  voice  of  the  people,  as  expressed  in  their  petitions, 
ought  to  prevail,  and  that  the  legislature  ought  to  do  whatever  it  is 
required  by  numerous  bodies  of  petitioners  to  do,  —  then  the  deliber- 
ative faculty  of  the  legislative  body  must  necessarily  be  destroyed ; 
for  its  duty  would  be  to  attend  to  the  demands  of  the  people,  not 
for  the  purpose  of  weighing  and  considering  them,  but  for  that  of 
granting  them  without  any  consideration  or  dehberation  at  all.^ 
What  efiect  the  petitions  of  the  people  ought  to  have  upon  the  de- 
liberations and  conduct  of  their  representatives,  is  a  question  which 
does  not  belong  to  the  subject  of  this  treatise. 

1077.  It  is  only  in  the  character  of  petitioners,  that  constituents 
are  in  strictness  entitled  to  offer  their  opinions  and  views  regarding 
public  measures  to  their  representatives.  In  a  petition,  the  state- 
ments of  the  petitioners  are  received  as  the  ground  of  the  prayer 
which  they  make.  A  memorial,  which  is  similar  in  its  statements 
and  allegations  to  a  petition,  but  is  unaccompanied  by  a  prayer,  is 
said  to  be  objectionable  in  point  of  form,  because  it  assumes  to 
speak  as  an  equal  and  to  advise  the  legislature  as  to  its  duties, 
without  any  particular  object  in  view ;  but  such  papers  have  never- 
theless been  received  as  petitions,  when  there  was  no  other  objec- 
tion to  them,  but  in  point  of  form,  and  they  contain  language 
equivalent  to  a  prayer.-^  A  remonstrance,  which  may  be  regarded 
as  a  similar  representation,  miaccompanied  by  a  prayer,  and  intend- 
ed to  express  opposition  to  the  passing  of  some  act,  or  the  adoption 
of  some  pending  or  contemplated  measure,  is  equally  objectionable 
in  point  of  form,  and  for  the  same  reasons.  Papers  with  this  title, 
when  drawn  up  in  respectful  language,  and  amounting  substantially 

»  I'arl.  Reg.  XXXII.  3S8.  »  Conim.  Jour.  LXVll.  398. 


436  LEGISLATIVE   ASSEMBLIES.  [PaRT   V 

to  a  petition  against  some  proposed  or  pending  measure,  have 
been  received  as  petitions.^  But,  in  general,  it  appears  to  be  the 
usage,  especially.  Avhen  the  object  is  to  call  in  question  the  proceed- 
ings of  the  house,  to  reject  papers  of  this  description.^  A.  protest  is 
similar  in  character  to  a  remonstrance,  but  expressed  in  stronger 
language.'''  A  declaration  against  any  measure  does  not  seem  to 
be  different  from  a  protest  or  remonstrance^  Papers  bearing  any 
of  these  titles,  if  they  contain  a  prayer,  are  received  as  petitions.' 
It  may  be  observed  in  general,  that  the  objections  to  remonstrances, 
protests,  etc.,  are,  for  the  most  part,  merely  formal.  The  same 
statements,  which  they  contain,  may  be  put  into  the  form  of  peti- 
tions, and  are  then  receivable.*^  A  paper  expressing  approbation  of 
the  proceedings  of  the  house  is  equally  objectionable  with  a  pro- 
test or  remonstrance,  and  is  not  receivable,  unless  it  bears  the  form 
of  a  petition.' 

1078.  While  the  house  is  careful,  on  the  one  hand,  to  respect 
the  right  of  petition,  in  whatever  form  it  may  be  exercised,  it  is 
equally  careful,  on  the  other,  to  have  due  regard  to  its  own  honor 
and  dignity ;  and,  therefore,  if  the  allegations  of  a  petition  turn  out 
to  be  false,  frivolous,  groundless,  vexatious,  or  maHcious,  the  peti- 
tioners are  liable  to  the  censure  and  punishment  of  the  house  ;  of 
which,  many  examples  are  found  in  the  journals.^ 

1079.  The  right  of  petition  is  not  subject  to  any  of  the  formal 
or  technical  rules  as  to  parties,  by  which  the  proceedings  in  courts 
of  law  are  governed.  AU  persons,  of  whatever  condition,  and  un- 
der whatever  circumstances,  —  married  women,  infants,  aliens, — 
may  petition,  provided  only  that  they  have  sufficient  understanding 
to  know  what  they  are  doing ;  if  they  have  not  understanding 
enough  to  act  for  themselves,  their  guardians,  if  they  have  any,  or 


1  Comm.  Jour.  XLVL  388;  Pari.  Reg.  XXIX.  tives  by  means  of  remonstrances  is  secured. 

63,  64.    It  appears  from  the  debates,  that  the  the  above-named   formal    obligations  cannot 

document  here  referred  to  was  entitled  by  of  course  apply. 

the  parties  a  remonstrance;  in  the  journal  it  "i  Hans.  (3),  LXIV.  423;  J.  of  H.  25th  Cong, 

is  entered  as  a  petition.  1st  Sess.  83.     Instruments,  with  all  the  objec- 

*  Hans.   (3),   XL.   1360;  Same,  (3),    LXV.  tioiiable    titles  mentioned  above,  and  many 
1225;  Pari.  Reg.  I.  467,  473.  others,  are  found  inscribed  on  the  journals  of 

8  Pari.  Reg.  XL.    228.     The  statement  on  congress ;  but  these  entries  afford  no  evidence 

page  225,  that  this  protest  was  ordered  to  lie  of  the  contents  of  the  petitions  in  question; 

on  the  table  as  a  petition,  is  a  mistake;  no  but  it  may  be  stated  generally,  that  the  strict 

such    entry    appears  on    the  journal.     See  rule  on  the  subject  does  not  appear  in  all  in- 

Comm.  .Jour.  L.  87.  stances,  to  be  applied  in  congress. 

*  Comm.  Jour.  LXXI V.  391.  «  Comm.  Jour.  XII.  146,  170,  628,  682 ;  Same, 
6  Pari.  Reg.  (2),  XVII.  63.  XIH.  884;  Same,   XXII.  897;  Samn,  XXXII. 

*  In  those  of  the  States  in  which  the  right  855 ;  Same,  XXXVIIL  315. 
of  constituents  to  address  their  representa/- 


CllAP.  VII.]  PETITIONS.  437 

their  friends,  if  they  have  no  guardians,  may  petition  for  them.  In 
regard  to  proceeding  on  private  petitions,  the  relation  sul^si sting 
between  the  petitioner  and  others  interested  in  the  suljjcct  will,  of 
course,  be  regarded.  The  petitions  of  foreigners  may  be  received, 
provided  they  reside  in  England,  and  the  subject  of  their  conqjlaint 
originated  in  the  acts  of  British  authorities,^  or  the  prayer  of  their 
petilioii  is  within  the  jurisdiction  of  the  house,  as,  for  example,  for 
naturalization.  In  those  parts  of  this  country,  in  which  the  institu- 
tion of  domestic  slavery  is  established,  the  petition  of  slaves  is  not 
admissible.2  But  a  petition  purporting  to  come  from  people  of 
color  does  not  appear  to  be  equally  objectionable."^ 

lOSO.  In  the  earliest  periods  of  parliamentary  history  of  which 
there  are  any  authentic  memorials,  before  the  constitution  of  parlia- 
ment had  assumed  its  present  form  of  two  distinct  branches,  and 
while  yet  the  modern  distinction  between  judicial  and  legislative 
functions  was  hardly  if  at  all  perceived,  the  subjects  were  accus- 
tomed to  present  their  petitions  to  the  great  councils  of  the  nation, 
for  the  redress  of  their  grievances,  principally  of  a  private  character, 
which  were  supposed  to  be  beyond  the  jurisdiction,  or  which  it  was 
feared,  might  be  beyond  the  power,  of  the  ordinary  tribunals  to 
redress. 

1081.  The  mode  of  proceeding  upon  these  petitions,  as  they 
were  mostly  for  the  redress  of  private  wrongs,  was  judicial  rather 
than  legislative.  Receivers  and  triers  of  petitions  were  appointed, 
at  the  commencement  of  each  parliament,  and  proclamation  was 
made,  inviting  all  people  to  resort  to  the  receivers.  These  were 
ordinarily  the  clerks  of  the  chancery,  afterwards  the  masters  in 
chancery,  and  still  later,  some  of  the  judges,  who,  sitting  in  a  public 
place  accessible  to  the  people,  received  their  complaints  and  trans- 
mitted them  to  the  auditors  or  ti-iers.  The  triers  were  committees 
of  prelates,  peers,  and  judges,  who  had  power  to  call  to  their  aid 
the  lord-chancellor,  the  lord-treasurer,  and  the  sergeants  at  law. 
The  petitions  being  examined  by  the  triers,  they  resolved  upon  the 
j)roper  disposition  to  be  made  of  them ;  in  some  cases,  the  petition- 
ers were  left  to  their  remedy  before  the  ordinary  courts ;  in  others, 
their  petitions  were  transmitted  to  the  judges  on  the  ckcuit ;  in 
others  again,  in  which  the  law  all'orded  no  redress,  they  were  sub- 
mitted to  the  high  court  of  parliament.  In  later  times,  and  after 
the  separation  of  the  two  houses,  petitions  continued  to  be  received 

»  Hans.  (3),  XHI.  1115.  »  J.  of  H.  III.  550. 

»  Cong.  Globe,  IV.  175. 

37* 


438  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

ill  the  lords  iii  the  same  manner,  until  the  functions  of  receivers  and 
triers  became  superseded  by  the  immediate  authority  of  the  house, 
or  by  committees,  whose  office  was  similar.^  Receivers  and  triers 
of  petitions  are  still  appointed  in  the  house  of  lords,  at  the  opening 
of  every  parliament,  precisely  as  in  the  most  ancient  times,  though 
they  have  long  since  ceased  to  exercise  any  of  the  functions  of  their 
office. 

1082.  In  the  reign  of  Henry  VI.  petitions  begun  to  be  addressed 
in  considerable  numbers  to  the  house  of  commons  alone.  These 
petitions  were  now,  in  consequence  of  the  extension  of  the  remedial 
jurisdiction  of  the  court  of  chancery,  more  in  the  nature  of  petitions 
for  private  bills,  than  for  equitable  remedies  for  private  wrongs; 
and  the  orders  of  parliament  upon  them  can  only  be  regarded  as 
special  statutes  of  private  or  local  appUcation.  As  the  limits  of 
judicature  and  legislation  became  defined,  the  petitions  applied 
more  distinctly  for  legislative  remedies,  and  were  preferred  to  par- 
liament through  the  commons ;  but  the  functions  of  parUament,  in 
passing  private  bills,  have  always  retained  the  mixed  judicial  and 
legislative  character  of  ancient  times.^  In  the  reigns  of  James  I. 
and  Charles  I.  —  and  especially  after  the  establishment  of  the  grand 
committees,  as  they  were  called,  for  grievances,  courts  of  justice, 
trade,  and  religion,  in  the  latter,  —  when  the  house  of  commons 
first  began  to  turn  its  attention  to  public  aflairs,  and  petitions  and 
complaints  relating  thereto  were  much  more  frequent  than  they 
had  ever  been  before,  petitions  were  presented  directly  to  the  com- 
mittee and  received  and  considered  by  them,  without  the  previous 
intervention  of  the  house.  This  practice  continued  through  the 
commonwealth.  On  the  restoration,  it  became  the  usage  of  both 
houses  to  receive  petitions  in  the  first  instance,  and  to  consider 
them,  and  only  to  refer  the  examination  of  them  in  particular  cases 
to  committees.^ 

1083.  Before  proceeding  further  with  the  subject  of  petitions,  it 
will  be  useful  to  point  out,  with  more  distinctness,  the  difference 
between  those  which  are  private  and  those  which  are  public.  A 
private  petition  is  one,  which  prays  for  some  proceeding  on  the  part 
of  parliament,  usually  the  passing  of  a  bill,  for  the  particular  interest 
or  benefit  of  any  person  or  persons,  public  company,  or  corporation, 
municipal  or  otherwise,  or  of  a  parish,  city,  county,  or  other  locality ; 
or  which  prays  that  any  such  bUl,  when  introduced,  may  not  pass, 

1  May,  382.  '  May,  382. 

«  May,  382. 


Chap.  VIL]  petitions.  439 

or  that  the  petitioners  may  be  heard  against  it.  All  petitions,  which 
have  in  view  a  measure  of  national  import,  or  one  in  wMch  the 
whole  community  is  interested,  are  public  petitions.  Private  peti- 
tioners are  allowed  to  prove  their  statements  by  evidence,  and  to 
be  heard  by  themselves  or  tlieir  counsel.  Public  petitioners  have 
no  such  right.  The  former  have  in  view  some  spcjciiic,  dciinite, 
object  relating  to  themselves.  The  latter  merely  express  their  opin- 
ion, including  of  course,  their  wishes  in  reference  to  some  public 
measure.  The  weight  and  influence  of  a  private  petition  depend 
upon  the  facts  which  it  sets  forth,  and  the  evidence  by  which  they 
are  substantiated.  The  respect  due  to  public  petitions  must,  of 
course,  depend  not  so  much  upon  the  statements  of  fact,  and  of 
argument,  which  they  contain,  as  upon  the  number  and  the  charac- 
ter of  the  petitioners.  Private  petitions,  in  ordinary  times,  and  in 
countries  wiiere  a  proper  judicial  system  is  established  and  in  opera- 
tion, cannot  reasonably  be  expected  to  exceed  a  very  moderate 
number.  Public  petitions,  especially  in  times  of  excitement,  cannot 
be  limited  as  to  number  or  magnitude.  It  will  be  seen,  hereafter, 
that  this  difference  in  the  character  of  the  two  classes  of  petitions, 
has  necessarily  led  to  very  important  differences  in  the  manner  of 
treating  them. 


Section  II.     Of  Petitions  as  to  their  Form. 

1084.  The  several  subjects,  which  require  to  be  noticed  with 
reference  to  the  form  of  a  petition,  relate,  first,  to  the  material  sub- 
stance upon  which,  and  tlie  manner  in  which,  a  petition  is  drawn 
up ;  second,  to  the  different  parts  of  a  petition,  namely,  the  super- 
scription or  direction,  the  designation  of  the  parties,  the  general 
allegation,  and  the  prayer;  third,  to  the  signing;  and  foil dh,  to 
matters  extraneous  or  annexed  to  a  petition. 

Article  I.     As  to  the  Material  upon  which,  and  the  Manner  in 
which,  a  Petition  is  to  be  written. 

1.085.  The  material  required  for  this  purpose  is  either  parchment 
or  paper ;  ^  on  one  or  more  skins  or  sheets  of  which,  bur,  if  the 
latter,  they  must  be  so  joined  together  as  to  form  one  whole,-  the  peti- 
tion must  be  written  in  the  English  language  ;  ^  or,  if  in  any  other, 

1  May,  384.  •  Comm.  Jour.  LXXVI.  173. 

«  Haiis.  (1),  XXXin.  215,  393. 


440  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

it  must  be  accompanied  with  a  translation,  which  the  member  pre- 
senting it  states  to  be  correct.^  This  rule  is  one  which,  of  course, 
admits  of  occasional  relaxation  ;  but  whether  in  those  States  where 
the  language  spoken  by  a  portion  of  the  inhabitants  is  not  English, 
and  ^^  here  the  laws,  or  legal  proceedings,  are  published  in  two  or 
more  languages,  it  is  applicable,  may  admit  of  some  question. 

1086.  In  the  commons,  it  is  an  established  rule,  that  a  petition 
must  be  ^\Titten  and  not  printed  •^  or  lithographed.^  Previous  to 
the  year  1656,  it  appears  to  have  been  allowable,  either  to  present 
petitions  in  a  prmted  form  to  the  committee,  who  were  then  gener- 
ally authorized  to  receive  them ;  or  for  petitioners  to  cause  their 
petition,  immediately  upon  being  presented,  to  be  prmted  and  dis- 
tributed among  the  members  of  the  committee.*  In  that  year  an 
order  was  made,  that  no  private  petition  should  be  printed  before 
being  presented  to  the  house.^  Whether  this  order  was  deemed  to 
be  in  force  or  not,  after  the  dissolution  of  the  parliament  at  which 
it  was  made,  does  not  appear ;  but  it  seems  certain,  that  it  soon 
became  the  estabhshed  practice  of  the  house  of  commons  to  decline 
receiving  any  petition,,  either  private  or  public,  which  was  in  a 
printed  form  ;  ^  and  such  is  understood  to  be  the  estabhshed  rule  at 
the  present  time.  In  the  house  of  lords,  though  the  rule  seems  to 
be  the  same,  it  has  not  been  so  sti-ictly  observed ;  a  printed  petition, 
in  favor  of  the  Catholic  claims  being  received  in  1813,  "  but  not  to 
be  drawn  into  precedent ; "  '  and,  again  in  1837,  another  was  re- 
ceived, on  which  occasion.  Lord  Lyndhurst  said,  that  hundreds  and 
thousands  of  printed  petitions  had  been  presented  and  received  in 
that  house  on  the  subject  of  the  abolition  of  slavery.^ 

•  1087.  A  petition  must  also  be  free  from  erasures  and  interhnea- 
tions  ;  ^  on  the  ground,  that,  where  any  such  alteration  appears  on 
the  face  of  the  petition  and  is  not  explained,  it  is  a  circumstance  of 
so  equivocal  a  character,  that,  in  point  of  form  the  petition  can  no 
longer  be  considered  as  that  of  the  persons  by  whom  it  is  signed.^" 
But  this  circumstance  is  susceptible  of  explanation ;  and  if  it  ap- 
pears, that  the  alteration  was  made  by  the  petitioners  themselves, 

or  with  their  knowledge  and  consent,  —  the  member  presenting  the 

1  Comm.  Jour.  LXXVL  189.  «  Pari.  Reg.  XXXV.  372,  373. 

2  Comm.  Jour.  LXXIL  128,  156,  280.  '  Lords'  Jour.  XLIX.  298  a. 

3  In  the  legislative  assemblies  of  this  coun-         *  Hans.  (3),  XXXVIL  211. 

try,  lithographed  or  printed  petitions  are  con-  "  Comm.     Jour.     LXXXII.    562 ;      Same, 

Btantly  received  without  ohjection.  LXXXVL  7G8. 

*  Lake  V.  Kintj,  Saunders's  Reports,  I.  131.  lo  Haus.  (1).  XIIL  816;  Same,  (3),  V.  1267 

See  Paraerraph  357.  1268. 

5  Comm.  Jour.  VH.  427. 


Chap.  VIL]  petitions.  441 

petition  so  stating  the  fact  to  be,  —  such  petition  is  to  be  regarded 
as  that  of  the  signers  and  may  be  received.^ 


Article  II.     As  to  the  several  parts  of  a  Petition. 

1088.  Petitions  are  to  be  addressed  to  the- house,  in  whicli  they 
are  to  l)e  presented ;  -  if  to  the  house  of  lords,  the  form  is :  To  the 
rig'ht  huiiorable  the  lords  spiritual  and  ternpbral  in  parliament  assem- 
bled; if  to  the  house  of  commons:  To  the  honorable  the  commons 
[or  knig-hts,  citizens,  and  burg-essesi  of  the  united  kingdom  of  Great 
Britain  and  Ireland,  in  parliament  assembled;^  and  any  essential 
variation  from  this  form,  as,  to  address  a  petition  "  to  the  upper  house 
of  parliament,  denominated  the  lords  spiritual  and  temporal,  in  par- 
liament assembled,"  *  or  to  the  lords  spmtual,  and  temporal  and 
commons  in  parliament  "  assembled,"  '^  or,  "  to  the  lords  temporal " 
alone,*"  will  be  such  an  irregularity  as  to  prevent  the  reception,  or 
make  it  necessary  to  withdraw  the  petition. 

1089.  The  second  part  of  a  petition  is  its  title,  or  the  designation 
which  the  petitioners  give  to  it  and  to  themselves,  which  should  be 
in  this  form :  The  humble  petition  of  [the  names  or  other  descrip- 
tion of  the  petitioners  being  here  inserted^  humbly  sheweth.  It  is 
irregidar  for  the  parties  to  entitle  their  proceeding  a  remonstrance, 
or  protest,  or  memorial  alone,  because  it  can  only  be  received  as  a 
petition  ;  but  it  is  not  fatal  to  do  so,  because  if  the  paper  contains 
the  other  requisites  of  a  petition,  it  may  be  received  as  such.'  It  is 
also  irregular  to  entitle  the  paper  "  The  petition  "  merely,  omitting 
the  word  "  humble,"  or  to  use  the  terms  "  respectfully  she\\eth," 
instead  of  "  humbly  sheweth,"  and  this  irregularity  has,  for  the  most 
part,^  but  not  always,'-*  made  it  necessary  to  withdraw  the  petition. 
In  regard  to  the  designation  of  the  parties,  if  there  is  but  a  single 
petitioner,  or  so'me  few  only,  the  name  and  addition  of  each  are 
usually  given  ;  if  the  parties  are  numerous,  they  commonly  describe 
themselves  in  general  terms,  as  inhabitants,  freeholders,  silk  manu- 
facturers and  throwsters,  parishioners,  resident  householders,  work- 

1  Hans.  (1),  V.  1267,  1268.  6  Lords'  Jour.  44,  642  h.,  644  a. 

2  The  le<ial  de:<igiiation  of   our  legislative         •  Lords'  Jour.  24,  122  b. 

assemblies  is  given  in   the  several   constitu-  '  P.  M.  Pari.  Reg.  I.  467,  473;   Same,  (2), 

tions;    and  they  may  be  known   so  readily,  X VIL  63;    Same,  XL.  228;  Same,  XXIX.  63, 

that  they  need  not  bo  repeated  in  this  place.  64;    Hans.  (3),   XL.  1360;    Same,  (3),  LXV. 

A  petition,  which  is  addressed  to  both  branches,  1223. 

nay  be  ciMisi.lered  as  if  addressed  to  either.  »  Lords' Jour.  52,  635,  671;  Hans.  (3),  40, 

»  Jlay,  384.  815. 

«  Haijs.  (1),  33,  300,  542.  »  Hans.  (1),  37,  438. 


442  LEGISLATIVE   ASSEMBLIES.  [ParT   V. 

men,  members  of  a  lodge  of  odd  fellows  ^  or  of  a  political  or  other 
union  of  a  particular  place.  If  petitioners  give  themselves  a  desig- 
nation to  which  they  are  not  entitled,  this  is  an  irregularity,  on 
account  of  which  it  may  be  necessary  to  withdraw  the  petition.^ 

1090.  The  third  part  of  a  petition,  or  the  body  of  it,  contains 
the  general  allegations  or  statements  upon  which  the  petitioners 
ask  the  interference  of  parliament.  This  part  will  be  considered 
more  particularly  hereafter,  when  treating  of  petitions  as  to  their 
substance ;  at  present,  one  circumstance  only  will  be  alluded  to, 
namely,  the  length  of  a  petition,  or  the  quantity  of  matter  which  it 
contains.  A  petition  should  contain  a  statement  of  all  the  material 
facts  upon  which  the  petitioner  rehes  to  substantiate  his  claim  for 
relief,  or  to  induce  the  house  to  the  particular  course  which  he  de- 
sires to  have  taken ;  and,  in  making  this  statement,  it  is  as  much 
his  interest,  as  it  is  his  duty,  to  set  forth  the  facts,  without  any  un- 
necessary minuteness  of  detail,  and  in  as  brief  and  intelligible  a 
manner  as  possible;  otherwise  the  very  impossibiUty  of  reading 
and  considering  the  petition,  consistently  with  the  transaction  of 
other  public  business  of  equal  importance,  wUl  prevent  it  from  be- 
ing read  or  considered  at  all,  or,  at  least,  with  that  attention  which 
the  subject  of  it  may  perhaps  deserve ;  and  thus  the  right  of  peti- 
tion may  in  some  sort  be  defeated  by  the  very  excess  of  its  exercise. 
The  great  length  of  a  petition,  however,  ought  not,  perhaps,  to  be 
considered  as  an  objection  to  its  reception,  so  much  as  to  the  sub- 
sequent proceedings  upon  it;  and,  in  every  case,  the  house  must 
be  governed  by  a  sound  and  wise  discretion,  as  to  the  subsequent 
proceedings ;  on  the  one  hand,  not  placing  its  own  convenience  in 
competition  with  the  exercise  of  the  right  of  petition  ;  and,  on  the 
other,  not  sacrificing  the  rights  or  interests  of  one  portion  of  ils  con- 
stituents for  the  sake  of  gratifying  the  humor,  or  treating  with  in- 
dulgence the  ignorance  or  unskilfulness,  of  another.^- 

1091.  The  last  part  of  the  petition  is  the  prayer,  in  which  the 
particular  object  of  the  petitioner  is  expressed.  This  is  essential,  in 
point  of  form,  to  constitute  a  petition  ;  and,  without  it.  a  document 
cannot  be  received  in  that  character.^  A  paper  containing  state- 
ments of  facts  however  important,  or  arguments  on  any  topic,  how- 
ever admirable  they  may  be,  is  not  entitled  to  the  consideration  of 
the  house,  unless  the  petitioner  has  some  object  in  view,  further 

1  Hans.  (2),  IV.  221.  *  May,  384;  Hans.  (1),  VIH.  684;  Same,  (2) 

»  Hans.  (1),  X.  685.  XIEI.  567. 

'Pari.  Reg.  LX.  494,  495;  Hans.  (1),  XL. 
459;  Same,  XXXV.  204. 


Chap.  VII.]  petitions.  443 

than  the  mere  communication  of  information.  The  prayer  also 
must  be  for  something  to  be  done  or  omitted  by  the  house,  in  the 
way  of  its  ordinary  proceeding  as  a  legislative  body ;  it  is  not  a 
proper  prayer  for  the  petitioner  merely  to  ask  the  attention  of  the 
house  to  his  statements.^ 


Article  III.     As  to  the  Sig-ning  of  a  Petition. 

1092.  The  general  rule  of  parliament  with  reference  to  the  sign- 
ing of  petitions,  as  expressed  in  a  resolution  of  the  house  of  com- 
mons, of  November  14, 1689,-  is,  that  "  all  petitions  presented  to  the 
house  ought  to  be  signed  by  the  petitioners,  with  their  own  hands, 
by  their  names  or  marks ; "  ^  to  which  there  appear  to  be  three  ex- 
ceptions, first,  where  a  petitioner  is  unable  from  sickness  to  sign  his 
name  or  mark,*  in  which  case,  another  person  may  sign  for  him  at 
his  request  or  by  his  authority  ^  or  consent ;  second,  where  a  peti- 
tion is  all  in  the  handwriting  of  the  petitioner,  in  which  case,  if  his 
name  appears  in  the  body  of  the  petition,  it  need  not  be  signed  at 
aU ;  *^  and,  third,  where  a  petitioner,  being  out  of  the  realm,  has  sent 
a  full  and  legal  authority  to  another  to  subscribe  his  name  for  him, 
in  which  case  the  petition  may  be  signed  in  the  usual  manner  by 
attorney.'^ 

1093.  When  the  names  attached  to  a  petition,  except  as  above 
mentioned,  appear  upon  inspection,  as  for  example,  where  they  are 
written  by  the  same  hand,*  or  are  declared,  not  to  be  in  the  hand- 
writing of  the  parties,  whose  names  they  piu-port  to  be,  the  petition 
is  not  receivable  ;  '■'  but  if  a  petition,  with  names  thus  appended  to 
it,  has  also  one  or  more  genuine  signatures,  it  may  be  received  as 
the  petition  of  those  by  whom  it  is  so  signed.^^  In  a  case  of  this 
kind,  it  is  necessary  that  the  spurious  signatures  should  be  separated 
from  the  genuine,  either  before  or  after  the  petition  is  presented. 
The  member,  who  has  charge  of  such  a  petition,  may,  before  ofler- 
ing  to  present  it,  detach  the  spmious  signatures,  if  that  can  be  done, 
and  present  it  with  such  of  the  original  signatures  as  remain  an- 
nexed to  the  petition ;  or  the  spurious  signatures  may  be  erased, 

1  Hans.  (2),  XIH.  567.  r  Hans,  (1),  XXXV.  862;  Pari.  Reg.  XXXII. 

«  Comin.  Jour.  X.  285;  Same,  XXX.  499.  2.    The  rules  stated  in  the  above  pai-agi-aph 

«  Comm.  Jour.  XXXIV.  800.  prevail  also  in  coni^ress. 

«  Hatsell,  II.  189,  note.  «  Comin.  Jour.  X.  285,  286. 

»Hans.   (1),   XI.    1,   2.      See    also    Lords'  »  Hans.  (1),  XI.  33,  34. 

Jour.  LI.  507,  619;  Comin.   Jour.    LXXXV.  "  Hatsell,  II.  189,  note;  Pari.  Reg.  XL.  449, 

141;  Same,  XCI.  326;  May,  386.  451;  Hans.  (1),  XI.  1,  2;  Same,  35^36:  Samo, 

•Haus.(l),  XIX.  1148.  XX.  1366,  1367. 


444 


LEGISLATIVE    ASSEMBLIES. 


[Part  V. 


and  the  petition  presented  with  such  as  are  genuine,  provided  the 
genuine  signatures  are  known  or  can  be  ascertained.  But  this 
course  is  hazardous  without  previous  investigation  and  inquiry; 
inasmuch  as  the  erasing  of  a  genuine  signature  would  destroy  the 
petition  as  to  such  party,  and  the  suffering  of  a  spurious  one  to  re- 
main might  prevent  its  reception.^  If  a  petition,  which  appears  to 
be  irregular  in  this  respect,  has  abeady  been  received,  it  may  either 
be  withdrawn,  for  the  purpose  of  having  the  spurious  signatures 
detached  or  erased,  or  it  may  be  referred  to  a  committee  to  inquire 
how  it  was  signed;  and  if,  upon  the  report  of  the  committee,  it  ap- 
pears that  any  of  the  signatures  are  not  genuine,  to  cause  them  to 
be  erased.'^ 

1094.  The  rule  above  stated  not  only  prohibits  one  person  from 
putting  the  name  of  another  to  a  petition,  but  also  from  putting  his 
own  as  the  agent  merely,  in  any  form,  of  such  petitioner :  thus  a 
petition  purporting  to  come  from  the  creditors  of  a  member,  and 
signed  by  an  individual  describing  himself  as  their  agent,  was  not 
received ;  ^  a  petition  purporting  to  be  from  the  master  printers  of 
Edinburgh,  which  was  signed  by  eighteen  persons  describing  them- 
selves as  a  committee  deputed  by  and  signing  on  behalf  of  a  gi-eat 
number  of  gentlemen,  master  printers  of  the  city  and  vicinity  of 
Edinburgh,  being  objected  to  as  improperly  signed,  was  withdrawn 
for  the  purpose  of  being  put  into  a  proper  form  ;'^  a  petition  which 
was  designated  by  the  subscribers  to  it  as  that  of  petitioners  on  be- 
half of  the  western  branch  of  the  national  union  of  the  working 
classes  of  the  metropolis  was  objected  to  and  withdrawn.^  Where, 
however,  the  parties,  whose  signatures  are  thus  affixed  to  a  peti- 
tion on  behalf  of  other  persons,  sign  it  also  on  their  own  account, 
or  come  within  the  description  of  the  petitioners,  as  where  a  peti- 
tion is  signed  by  the  chairman  of  a  public  meeting,  on  behalf  of 
himself  and  the  other  persons  there  assembled,''  or  by  a  sheriff,  m 
behalf  of  the  freeholders  and  inhabitants  of  his  county,  at  a  county 
meeting,"  such  petition  may  be  received  as  the  petition  of  the  indi- 
vidual by  whom  it  is  signed ;  and,  so  in  the  cases  above  mentioned, 
if  the  persons,  by  whom  those  petitions  were  severally  signed,  had 
eigned  for  themselves  as  well  as  others,  the  petitions  might  have 


iHiins.  (1),  XI.  34,  35. 
«  Pari.  Reg.  XL.  450,  451. 
«  H:ins.  (1),  XXXIX.  1.34. 
*  Pari.  Pieg.  (2),  XVII.  441,  442. 


sHiins.  (3),  Vn.  683;  Comm.  Jour. 
LXXXVI.  872. 

•Hateell,  II.  189,'  note;  Pari.  Reg.  (2), 
XVII.   389;  Hans.   (3),  IX.  594. 

»  Hans.  (1),  XXXV.  908,  9G9,  970. 


Chap.  VIL]  petitions.  445 

been  received  as  those  of  the  several  petitioners  by  whom  they  were 
signed.' 

1095.  The  rule  under  consideration  does  not  extend  to  the  indi- 
viduals composing  any  municipal  or  other  corporation  or  cliartered 
body  which  has  a  legal  existence,  and  which  must  therefore  be 
recognized  in  its  aggregate  capacity  by  parliament.-  The  petition 
of  such  a  body  should  be  signed  by  the  proper  o/Iicers,  and  authen- 
ticated by  its  common  seal,  if  it  has  one,'^  otherwise  by  its  officers 
only.^  In  all  cases  of  this  kind,  the  petition  should  be  drawn  up 
and  signed  by  the  legal  name  and  style  of  the  corporation  or  com- 
pany. 

1096.  The  house  of  commons,  by  a  resolution  agreed  to  June 
2d,  1774,  declared  it  to  be  "  highly  unwarrantable,  and  a  breach  of 
the  privilege  of  this  house,  for  any  person  to  set  the  name  of  any 
other  person  to  any  petition  to  be  presented  to  this  house."  °  Inde- 
pendently, however,  of  any  express  declaration  to  this  effect,  there 
can  be  no  doubt,  that  the  presentation  of  a  forged  petition,  (and  a 
genuine  petition  with  some  forged  and  some  genuine  signatures 
upon  it  must  be  considered  as  to  the  former  a  forgery,)  is  such  an 
imposition  and  insult  as  must  of  necessity  amount  to  a  breach  of 
privilege.  The  rule  above  mentioned,  though  broad  and  general  in 
its  terms,  must  doubtless  be  restricted  to  petitions  which  have  been 
presented  and  received  by  the  house ;  one  which  has  merely  been 
prepared,  but  not  presented,  or  which  has  been  offered  and  refused, 
or  which  has  been  presented  and  withdrawn,  can  hardly  be  con- 
sidered as  a  breach  of  privilege.  In  cases  of  this  kind,  although 
the  offence  is  a  breach  of  privilege,  the  house  does  not  proceed 
until  a  complaint  of  the  forgery  is  made  by  some  person  or  persons 
interested,  usually  in  the  form  of  a  petition,  which  is  presented  to 
the  house  and  referred  to  a  committee.  In  one  instance,  a  com- 
plaint was  made  by  means  of  a  letter  addressed  to  a  member  and 
read  by  him  to  the  house,  upon  which  a  committee  was  appointed, 

^  This  is  not  a  matter  of  indifference,  as  bllng  themselves  together  to  consult  for  the 

where  a  petition  is  so  received,  it  cannot  be  common  good,  it  might  be  made  a  question, 

considered  in  a  parliamentary  sense  to  express  whether  a  petition   emanating  from  such  a 

the  meaning  or  views,  or  wishes,  of  the  meet-  meeting,  and  signed  in  beh:ilf  thereof  by  the 

ing  at  whicti  it  purports  to  have  been  agreed  chairman  and  secretary,  ouglit  not  to  be  con- 

npon,  but  only  of  the  individual  by  whom  it  sidered  as  the  petition  of  the  meeting.     See, 

is  signed.    Consequently  any  allusion  to  it  in  also,  Cong.  Globe,  XI.  439. 

debate  as  expressing  tlie  sense  of  the  meeting  »  Hans.  (3),  VII.  683;  Same,  IX.  694. 

must,  of  course,  be  disorderly.    In  those  of  »  pjirl.  Reg.  XLIII.  687. 

the  States  in  which  the  people  are  secured  by  *  Hans.  (2),  Xin.  9. 

constitutional  provision  in  the  right  of  assem-  *  Comm.  Jour.  XXXIV.  800. 

38 


446  LEGISLATIVE  ASSEMBLIES.     .  [PaRT    V 

to  whom  the  petition  in  question  was  referred.^  In  reference  to 
this  case,  Mr.  Speaker  Manners  Sutton,  on  a  subsequent  occasion, 
remarked,  that,  "  the  house,"  he  beheved,  "  was  influenced  by  the 
consideration,  that  a  letter  had  in  some  sort  the  effect  of  a  petition, 
and  inferred  a  responsibility;  the  house  W9uld  exercise  its  dis- 
cretion, but  the  practice  was,  to  take  care  that  the  grievance 
complained  of  should  be  substantiated  by  the  assurance  and 
responsibility  of  some  party  aggrieved,  and  therefore  to  require 
something  more  than  a  mere  statement."  ^  In  the  case  to  which 
these  remarks  were  particularly  directed,  the  house  had  previously 
appointed  a  committee  upon  the  statement  of  a  member,  that  some 
of  the  signatures  to  a  certain  petition  were  forgeries,  but  without 
any  complaint  or  petition  from  persons  interested ;  thereupon  a 
petition  was  presented  from  some  of  the  persons,  whose  signatures 
were  alleged  to  be  forged,  stating  that  the  petition  was  genuine, 
that  they  had  signed  it,  and  offering  to  substantiate  these  facts  by 
evidence ;  and  a  motion  being  then  made,  that  these  parties  be 
heard  before  the  committee,  a  debate  ensued,  which  terminated  in 
the  committee  being  discharged,  on  the  ground  of  the  irregularity 
of  the  proceeding.^  A  similar  rule,  as  to  not  proceeding  unless  a 
complaint  is  made  in  some  form  by  parties  interested,  appears  to 
prevail  in  the  house  of  lords.''  If  the  committee  appointed  to  inves- 
tigate a  charge  of  forgery,  reports  that  the  offence  has  been  commit- 
ted, the  offender  is  punished  by  commitment  to  one  of  the  public 
prisons.^ 

1097.  Where  a  petition  consists  of  several  sldns  of  parchment, 
or  several  sheets  of  paper,  attached  together,  it  is  an  established 
rule  in  both  houses,  that  the  skin  or  sheet,  upon  which  the  petition 
itself  is  written,  or  upon  which  it  terminates,  should  have  at  least 
one  of  the  signatures  upon  it/^  This  rule  is  establis^hed  in  order  to 
guard  against  the  imposition  of  names  being  procured  for  one  pur- 
pose, and  attached  to  a  petition  for  another ;  one  name  alone  being 
deemed  sufficient  to  entitle  the  petition  to  the  respectful  cotisidera- 
tion  of  the  house,  and,  if  genuine,  to  furnish  some  security  for  the 
authenticity  of  aU  the  other  signatures.'  The  reason  of  this  rule 
is  fully  and  forcibly  expressed  in  the  following  remarks  made  in 

J  Hans.  (2),  XXI.  22,  23.  «  Comm.   Join-.   LXXIl.   12?,   144;    Cong. 

«  Hans.  (3),  XXH.  189.  Globe,  XXIH.  575;  Same,  LXX  VII.  127 ;  Hat- 

»  Comm.  Jour.  LXXXIX.  92,  108,  109,  116,      sell,  II.  189,  note;  Hans.  (1),  XXX.  257,  258 

121.  Same,  (1),  XXXV.  94,  95;  Same,  05,  96. 

*  Lords'  Jour.  XL.  534,  (a).  i  Hans.  (1),  XXXV.  98. 

'  Comm.  Jour.  LXXX.  445:  Same,  LXXX. 
661,  582;  Same,  LXXXIV.  187. 


CnAr.  VIL]  petitions.  447 

debate  in  the  house  of  commons,  by  the  attorney-general,  1817 :  — 
"  If  petitions  conld  be  received,  WTitten  with  the  signatures  on  one 
piere  of  paper,  and  the  application  upon  another,  what  security  had 
the  house,  that  they  were  genuine  ?  Might  there  not  be  a  bureau 
in  town  for  the  manufacture  of  petitions,  and  another  in  the  country 
for  procuring  signatures?  And  might  not  some  demagogue  join 
the  operation  of  the  two,  without  any  authority  from  the  persons 
whose  names  were  employed  ?  The  house  should  be  open  to  the 
grievances  and  representations  of  the  people,  but  it  should  know 
whether  the  statement  of  those  grievances  and  the  prayer  for  relief 
really  came  from  themselves,  or  were  brought  forward  by  persons 
who  abused  their  confidence  in  order  to  influence  the  public  dia- 
content."  ^ 

1098.  The  signatures  attached  to  a  petition  are  generally  pre- 
ceded by  the.^e  words,  which  follow  the  prayer :  And  your  petitioners^ 
as  in  duty  bound  ivill  ever  pray ;  but,  this  form  is  not  indispensable.  ^ 
A  petition  has  no  date.-^ 


•  Article  IV.     As  to  Matters  extraneous  to  a  Petition. 

1099.  ^\^lat  has  been  stated  under  the  preceding  heads  is  all 
that  in  strictness  relates  to  a  petition ;  but,  rfs  it  has  sometimes  been 
attempted  to  annex  other  papers  and  documents  to  a  petition, 
usually  in  the  form  of  evidence  in  support  of  its  allegations,  and  to 
present  the  whole  together ;  it  is  necessary  to  state  the  rule  with 
reference  to  such  extraneous  matters.  According  to  the  parliament- 
ary couse  of  proceeding,  the  way  is  to  present  a  petition  containing 
a  statement  of  the  facts  upon  which  the  petitioner's  case  depends, 
and  to  pray  that  the  house  would  allow  the  petitioner  to  be  heard 
with  his  witnesses  and  counsel  to  substantiate  those  facts;  the 
house  then  has  the  option,  upon  such  statement,  to  go  into  the 
case,  or  to  dismiss  it  at  once.^  It  is  deemed  to  be  irregular,  there- 
fore, to  mix  up  the  facts  with  the  evidence,  so  as  to  compel  the 
house  to  consider  them  both  together  in  the  first  instance ;  or  to 
call  upon  the  house  to  read  and  consider  the  evidence,  before  it  has 
determined  to  enter  upon  the  inquiry.  It  is  consequently  an  estab- 
lished rule,  in  both  houses,  that  no  petition  can  be  received  which 
has  affidavits,  letters,  or  other  papers  or  documents  attached  to  it; 
not  even  an  affidavit  of  the  genuineness  of  the  signatures,  or  a 

»  Hans.  (1),  XXXV.  96.  '  Huns.  (3),  XXII.  185. 

>  May,  384.  *  Hans.  (1),  XX VII.  895. 


448  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

statement  giving  additional  reasons  for  the  signatures  of  some  of 
the  petitioners.^  Inasmuch,  however,  as  the  annexation  of  such 
papers  is  only  objectionable  in  point  of  form,  they  may  be  sepa- 
rated from  the  petition,  and  the  petition  presented  without  them , 
but,  in  such  a  case,  it  will  be  for  the  member  having  charge  of  the 
petition  to  decide,  whether  it  will  be  sufficient  of  itself  without  the 
papers  annexed;  if  not,  the  preferable  course  is  to  withdraw  the 
petition  altogether  in  order  that  it  may  be  put  into  a  proper  form 
or  a  new  one  prepared.^ 

1100.  It  is  essential  that  the  house  should  have  some  evidence 
of  the  genuineness  of  a  petition  or  of  the  signatures  to  it,  which  is 
also  a  pledge  to  make  good  the  allegations  contained  in  it,  before 
proceeding  to  entertain  and  consider  it.  This  appears  to  have  been 
anciently  effected  by  the  evidence  of  the  petitioners  themselves,  or 
of  other  persons  attending  for  the  purpose  at  the  bar,  according  to 
the  practice  as  stated  by  ScobeU :  "  That  if  the  petitions  be  con- 
cerning private  persons,  they  are  to  be  subscribed,  and  the  persons 
presenting  them  called  in  to  the  bar  to  avow  the  substance  of  the 
petition,  especially  if  it  be  a  complaint  against  any."^  The  state- 
ment of  a  member,  that  he  knew  the  handwriting,  subsequently 
came  to  be  considered  as  equivalent  to  this  evidence  in  order  that 
petitioners  might  not  l^e  subjected  to  the  necessity  of  coming  from 
remote  parts  to  prove  their  petitions ;  but  at  the  same  time,  it  was 
not  allowed  to  prove  the  genuineness  of  a  petition  by  the  affidavits 
of  witnesses  taken  in  the  country,  and  attached  to  the  petition.* 
The  practice,  of  calling  in  petitioners  to  own  their  petitions,  pre- 
vailed for  some  time  after  the  revolution;'^  but  it  has  now  for  a 
longtime  been  discontinued;*^  as  has  also  the  practice,  if  it  ever 
prevailed,  of  a  member's  vouching  for  the  genuineness  of  the  signa- 
tures.^ The  rule,  on  this  subject,  which  prevails  in  modern  times, 
is  thus  stated  by  Mr.  Speaker  Abbott :  "  The  house  required  of 

1  Comm.  Jour.  LXXXI.  82;  Same,  LXXXII.  tioners  being  admitted  on  the  floor  of  the 

41;    Grey,  VI.  38;    Hans.  (1),  XXVII.  395;  house,  the  address  was   read.     On  the  next 

Same,  XXXVin.  662;  Same,  (2),  XIV.  667;  day  it  was  resolved,  "  that  no  motion  shall  be 

Same,  (3),  XXXVII.  835.  deemed  in  order,  to  admit  any  person  or  per- 

*  Hans.  (1),  XXVn.  395;  Same,  XXXVHL  sons  whatever  within  the  doors  of  the  senate 

662.  chamber  to  present  any  petition,  memorial,  or 

■  «  Scobell,  87.  address,  or  to  hear  any  such  read."    J.  of  S. 

«  Grey,  VL  36,  37,  3S.  II.  480,  481. 

6  Gomm.  Jour.  X.  13,  35,  65,  70,  75,  81, 192,  «  Cav.  Deb.  I.  74. 
285;  Same,  XIH.  518,  750,  764.  In  the  sen-  '  In  the  house  of  lords,  in  1775,  Lord  Cam- 
ate  of  the  United  States  at  a  very  early  con-  den  vouched  for  the  genuineness  of  a  petition 
gress,  an  address  and  memorial  of  citizens  of  presented  by  him,  on  a  doubt  being  expressed 
Philadelphia  was  presented,  and  on  motion  a  as  to  how  the  petition  came  into  his  hands 
large  and  respectable  committee  of  the  peti-  Pari.  Keg.  II.  133,  134. 


Chap.  VIL]  petitions.  449 

members  presenting  petitions,  that  they  should  be  able  to  say,  that 
they  believed  the  signatures  to  be  authentic,  but  it  had  not  been 
the  practice  to  require  absolute  certainty  on  that  point ;  a  practice 
which  would  be  attended  with  great  inconvenience.  God  forbid, 
that  the  sul)jects  of  this  country  should  be  unable  to  have  petitions 
presented,  unless  they  came  from  the  most  distant  parts  of  the  king- 
dom, to  give  them  into  the  hands  of  members,  and  prove  their  hand- 
writing." ^ 


Section  III.     Of  Petitions  as  to  their  Substance. 

1101.  The  first  essential  requisite  to  a  petition,  so  far  as  its  sub- 
stance is  concerned,  relates  to  the  language  in  which  it  is  expressed; 
which  should  be  decorous  and  proper  in  itself,  and  also  respectful 
towards  the  house  to  which  it  is  addressed,  as  well  as  its  individual 
members,  and  to  other  coordinate  bodies  and  authorities.-  The 
observance  of  this  rule  is  not  inconsistent  with  the  fullest  and  freest 
exercise  of  the  right  of  petition;  for  there  can  be  no  grievance, 
public  or  private,  within  the  power  of  the  legislature  to  relieve, 
which  may  not  be  adequately  complained  of  in  courteous  and 
decent  terms.^  And  a  breach  of  the  rule  is  not  only  an  insult  to 
the  legislative  body,  but  to  the  whole  constituency,  including  the 
petitioners,  of  which  that  body  is  the  representative  ;  tending  rather 
to  excite  ill-feeling  than  to  promote  calm  deliberation ;  and  ad- 
mitting of  no  answer,  consistently  with  parliamentary  forms,  beyond 
the  simple  rejection  of  the  offensive  document."* 

1102.  In  judging  of  the  language  of  a  petition,  the  following 
rules  will  be  found  useful ;  first,)  that  if  the  wording  of  a  petition  is 
susceptible  of  more  than  one  construction,  that  meaning  is  to  be 
adopted,  which  is  most  favorable  to  the  petitioners ;  ^  second,  that 
the  character  of  the  petition  does  not  depend  upon  the  use  of  any 
particular  expression,  but  is  rather  to  be  gathered  from  the  whole 
tenor  of  the  language;^  third,  that  where  offensive  expressions  are 
introduced  into  a  petition,  which  are  clearly  irrelevant  to  the  prayer 


1  Hans.  (1),  XVII.  314,  315,  316,  820.     The  a  See  also  J.  of  C.  IV.  670;  J.  of  H.  15th 

rule,  on  this  subject,  laid  down  in  the  senate  Cong.  1st  Sess.  320 ;  Cong.  Globe,  VU.  246. 

of  the  United  States  many  years   ago,  was  '  Hans.  (3),  XL.  474,  475. 

*•  that  no  petition  was  to  be  acted  upon,  unless  *  Hans.  (1),  XXXV.  204. 

signed  or  written  in  the  presence  of  the  mem-  '  Hans.  (2),  XV.  970. 

ber,  or  unless  the  handwriting  was  averred  by  '  Hans.  <2),  VI.  1238. 
the  member  presenting  it."    Reg.  of  Deb.  IH. 
296. 

38* 


450  LEGISLATIVE  ASSEMBLIES,  [PaRT  V 

of  it,  this  circumstance  affords  strong  ground  for  concluding  that 
the  disrespect  is  intentional ;  ^  and  fourth,  that  when  the  language 
of  a  petition  is  such,  that,  if  spoken  by  a  member  in  debate,  it 
would  be  disorderly  and  unparliamentary,  it  is  improper  to  be  em- 
ployed in  a  petition.^  If  the  object  of  a  petition,  when  judged  of 
by  these  rules,  appears  to  be  simply  to  complain  of  a  grievance,  it 
ought  to  be  received ;  if,  without  any  such  purpose,  or  using  it  as  a 
mere  pretext,  the  only  intention  of  a  petitioner  appears  to  be  to 
vilify  and  traduce  the  house,  or  to  treat  it  with  disrespect,  his  peti- 
tion ought  to  be  rejected.^ 

1103.  The  following  are  instances  of  disrespectful  and  offensive 
language  addressed  to  the  house  itself,  on  account  of  which  peti- 
tions have  been  refused  or  rejected :  "  that  an  arbitrary  imprison- 
ment (refemng  to  the  commitment  of  Sir  Francis  Burdett  and  Mr, 
Gale  Jones  by  the  house)  of  the  subjects  of  this  realm,  during 
pleasure,  for  an  alleged  libel,  not  proved  to  be  such,  is  an  infringe- 
ment both  of  the  liberty  of  the  press  and  of  the  person  ; "  ^  that  one 
vote  of  the  house  was  "  past  all  endurance,"  and  another  "  a  flagrant 
illegaUty ; "  °  that,  in  committing  Sir  Francis  Burdett  the  house  had 
"  usurped  a  power  unknown  to  the  law,  and  not  warranted  by  the 
constitution ; "  ^  that  the  commitment  of  Sir  Francis  Burdett  was 
"  a  violation  of  the  personal  security  of  the  people  of  the  land,  and 
without  law ; " "  that  it  is  the  universal  conviction  of  the  people, 
that  the  house  of  commons  doth  not,  in  any  constitutional  or  na- 
tional sense,  represent  the  nation;^  that  boys  were  sent  into  parlia- 
ment, who  came  solely  to  vote  according  to  the  dictation  of  minis- 
ters, and  never  heard  an  iota  of  the  merits  of  the  question ;  ^  that 
two  hundred  members  of  the  house,  naming  them,  were  returned 
by  borough  influence,  and  calling  on  the  house  to  expel  them ;  ^^ 
that  the  Jews  were  not  the  murderers  of  the  Saviour,  (which  the 
petitioner  offered  to  prove  at  the  bar,)  and  did  not  deserve  the  per- 
secution and  exclusion  to  which  they  were  subjected  ;ii  complaining 
of  the  great  and  unnecessary  delay  in  passing  the  reform  bill,  and 
declaring  that  it  was  impeded  by  the  upholders  of  corruption  in  the 

1  Pari.  Reg.  XXXV.  350,  357;  Hans.  (3),  *  Hans.  (1),  XVH.  443,  454. 

IV.  678,  579,  580.  6  Hans.  (1),  XVH.  1031. 

«  Hans.  (3),  VL  536,  537,  538;    Same,  (3),  »  Hans.  (1),  XVH.  815,  818. 

XX.  634;  Same,  (3),  XXXIV.  670.    The  con-  '  Hans.  (1),  XVH.  885,  944. 

verse  of  this  proposition,  namely,  that  what-  ^  Hans.  (1),  XXXV.  82,  91,  98. 

ever  may  be  spoken  in  debate,  may  be  stated  '  Hans.  (2),  VI.  1370. 

in  a  petition,   does  not    hold    equally  true.  ^^  Hans.  (2),  H.  479,  485. 

Pari.  Reg.  XXXV.  349.  "  Hans.  (2),  XXV.  413. 

»  Hans.  (2),  VL  1233. 


Chap.  VII.]  petitions.  451 

honorable  house,  who,  upon  the  most  frivolous  pretence,  wasted  the 
public  time;^  to  impute  motives  to  the  house,  which,  from  one 
member  to  another,  would  be  disorderly.- 

1104.  There  are  also  instances  of  offensive  expressions,  not  par- 
ticularly affecting,  though  addressed  to,  the  house  itself,  on  account 
of  which  petitions  have  been  refused  to  be  received,  as  disrespectful 
to  the  house;  as,  where  certain  petitioners,  with  an  evident  inten- 
tion to  make  their  petition  a  vehicle  for  scandal  and  abuse  of  the 
other  house  of  parliament,  prayed  "  that  those  charitable  bequests, 
which  had  been  hitherto  roguishly  absorbed  by  the  clerical  and  lay 
aristocracy,  should  be  appropriated  to  their  proper  uses;"^  where 
the  purpose  of  the  petition  is  to  throw  ridicule  on  an  act  of  parlia- 
ment, the  petitioners  complaining  "  of  the  profligate  expenditure  of 
the  public  money  in  gi-anting  the  queen  .£100,000  per  annum,  in 
the  event  of  her  surviving  his  majesty,  and  praying  for  a  legislative 
enactment,  by  which  the  widow  of  every  operative  in  the  kingdom 
should   receive  .£25  per  annum,  in  case  her  husband  should  not 
die  worth  XlOO,  and  adding  that  they  could  not  apprehend  any 
objection  to  this,  as  those  individuals  had  much  better  claims  upon 
the  nation  for  this  small  sum,  as  belonging  to  the  productive  classes, 
being  in  fact  the  only  producers  of  wealth,  than  her  majesty  to 
the   grant  of  ^6 100,000 ;" '^  where  a  petition  contained  these  ex- 
pressions, "  your  petitioners  do  not  deny  that  there  is  a  rabble  of 
the  trades,  as  there  is  a  rabble  of  the  lords,  and  a  rabble  of  aris- 
tocracy, but  they  do  not  say  there  is  a  rabble  in  your  honorable 
house."  '' 

1105.  There  is  another  class  of  cases,  in  which  the  language  of 
a  petition  is  improper,  not  because  of  its  being  offensive  in  ifself  or 
indecorous  in  its  terms,  but  because  the  statements,  of  which  it  is 
the  vehicle,  are  not  proper  to  be  made  by  petitioners.  Thus,  it  is 
not  allowable  for  petitioners  to  refer  to  any  thing  which  may  have 
been  said  by  members  in  debate  in  the  house,*^  either  for  the  pur- 
pose of  complaint,"  contradiction,^  or  comment ;  ^  or  to  refer  to  the 
proceedings  of  a  committee  which  has  not  yet  reported ;  i"  or  to 
complain  of  the  mode  in  which  the  proceedings  of  the  house  are 

1  Hans.  (3),  VI.  536,  637,  538.  Same,  (3),  LXIII.  192;    Same,  XXIV-  1287, 

a  Hans.  (3),  XX.  634.  '                 Same,  LIV.  462. 

8  Hans.  (3),  XXXIV.  670.  '  Han?.  (1),  XL.  150,  151. 

*  Haim.  (3),  VI.  292,  293,  294.  «  Hans.  (3),  III.  1734,  1735,  1736. 

»  Hans.  (3),  XL.  474,  475.  »  Hans.  (2).  1136;  Same,  XV.  970;  ^ame, 
«  Hans.  (3),  IH.  1734, 1735, 1736;  Same,  (1),      (3),  LXHL  102. 

XL.  150,  151;  Same,  (2),  1136;  Same,  970;        >«  Hans.  (2),  X.  8,  9,  10. 


452  LEGISLATIVE    ASSEMBLIES.  [PaRT   V 

conducted;  ^  or  to  take  notice  of  matters  which  they  can  only  know 
by  means  of  a  breach  of  the  privileges  of  the  other  house.^ 

1106.  The  second  essential  requisite  to  a  petition  is,  that  it 
should  set  forth  a  case  in  which  the  house  has  jurisdiction  to  inter- 
fere.^ Thus,  in  reference  to  a  petition  presented  in  the  house  of 
lords.  Lord  Chancellor  Eldon  said :  "  The  petition  in  fact  demand- 
ed that  they  should  interfere  in  a  case  which  was  open  to  judicial 
proceedings  ;  that  they  should  assume  an  original  jurisdiction,  con- 
trary to  the  principles  of  the  constitution ; "  and  the  petition  was 
thereupon  rejected.^  So,  where  a  petition  was  presented  in  the 
house  of  commons,  complaining  of  a  speech  made  by  a  member,  in 
which  the  petitioner  was  charged  with  roasting  the  bible,  the 
petitioner  saying,  at  the  same  time,  that  being  aware  he  could  not 
complain  of  any  thing  that  took  place  in  the  house,  he  merely 
meant  to  complain  of  what  had  been  published  as  a  part  of  its 
proceedings  in  the  public  prints,  the  speaker  said,  that  "  if  the 
petitioner  had  to  complain  of  the  pubUcation  of  any  libel  out  of  the 
house,  that  was  not  the  place  to  come  to  for  redress,  but  that  there 
were  other  tribunals  open  to  him  for  the  purpose."  °  A  petition 
being  offered  to  be  presented  from  inhabitants  of  Crete,  complain- 
ing of  their  sufferings  under  the  Turkish  government  in  that  island, 
and  objection  being  made  to  the  reception  of  the  petition,  the 
speaker,  Mr.  Manners  Sutton,  said,  "  that  the  object  of  the  petitioners 
was  to  obtain  the  interference  of  the  crown  of  Great  Britain  to  pro- 
tect them  from  the  miseries  under  which  they  were  at  the  present 
moment  laboring ;  the  petition  did  not  appear  to  contain  any  mat- 
ter which  brought  it  within  the  jurisdiction  of  the  house  of  com- 
mons.*' ^  So,  where  a  petition  was  offered  to  be  presented  from 
Polish  refugees,  resident  in  London,  praying  the  house  to  address 
the  crown,  in  order  to  obtain  its  interference  in  the  affairs  of  Poland, 
objection  being  made  to  its  reception,  Mr.  Speaker  Manners  Sut- 
ton said :  "  The  house  might  receive  the  petitions  of  foreigners 
residing  in  this  country,  when  the  subject  of  their  complaint  origi- 
nated in  the  acts  of  British  authorities  ;  but  he  was  of  opinion  that 
such  a  petition  as  that  brought  forward,  could  not  be  received." 
The  petition  was  then  withdrawn.'^ 

1107.  A  third  requisite  is,  that  the  petition  should  conclude  with 
a  prayer  for  such  interference  on  the  patrt  of  the  house,  or,  in  other 

1  Hans.  (3),  V.  1334;  Same,  XXIV.  1288.  «  Hans.  (3),  IX.  1275. 

»  Hans.  (3),  VHL  894.  •  Hans.  (3),  II.  654,  656. 

8  Pari.  Reg.  XXHI.  113.  '  Hans.  (3),  XIH.  1116. 
♦  Hans.  (1),  XXXV.  173. 


Chap.  VIL]  petitions.  ^  453 

words,  for  such  relief,  as  is  within  the  power  of  the  house.  Thus, 
in  reference  to  a  petition  presented  in  the  house  of  hDrds,  Lord 
Chancellor  Eldon  said,  "  that,  in  its  present  shape,  the  petitioner 
prayed  for  no  legislalive  relief,  but  for  proceedings  in  a  court  of  law, 
which  that  house  "could  not  originate  ;"  ^  where  a  petition  was  pre- 
sented to  the  house  of  commons,  in  which  the  petitioner  complain- 
ed, that  at  a  trial  for  libel,  in  which  the  petitioner  was  the  prose- 
cutor, the  judge  who  presided  refused  to  allow  him  to  address  the 
jury,  but  the  petition  did  not  pray  for  any  specific  relief,  the  house, 
on  that  ground,  refused  to  order  the  petition  to  lie  on  the  table  ;2 
where  a  petition  was  presented  in  the  house  of  lords,  relating  to 
the  then  late  melancholy  occurrences  in  Kent,  and  praying  for  the 
appointment  of  a  committee  to  investigate,  and  that  till  the  report 
was  made,  all  judicial  proceedings  might  be  susjiended.  Lord 
Brougham  objected  to  the  petition,  "  because  it  contained  a  prayer 
v/ith  which  the  house  had  no  power  to  comply ;  if  it  complied  with 
that  prayer,  it  would  be  guilty  of  a  breach  of  the  law ;  it  had  no 
right  to  stay  any  judicial  proceedings  ;  "  and  the  petition  was  there- 
upon rejected.'' 

1108.  But  where  a  petition,  besides  a  prayer  for  relief  which 
is  not  mthin  the  power  of  the  house,  prays  also  for  that  which  is, 
the  petition  ^^-ill  be  received ;  as,  for  example,  where  a  petitioner 
set  forth  that  he  was  imprisoned  in  the  gaol  of  Edinliurgh,  at  the 
instance  of  the  clergy  of  that  city,  for  arrears  of  an  annuity  tax,  and 
prayed  that  he  might  be  set  at  liberty,  and  also  that  the  tax  might 
be  abolished,  the  petition  was  received,  although  the  first  part  of 
the  prayer  was  not  within  the  constitutional  power  of  the  house.* 
If  the  prayer  of  the  petition  is  within  the  power  of  the  house  to 
grant,  the  absurdity  of  it  is  no  objection  to  the  reception  of  the 
petition  ;  as,  for  example,  a  petition  being  presented  in  the  house 
of  commons,  praying  the  house  to  adopt  some  legislative  enact- 
ment, to  cause  the  canon  law  of  the  church  ©f  Rome  to  be  fairly 
observed  in  Ireland,  and  the  receiving  of  the  petition  being  objected 
to,  for  the  reason  that  the  house  could  neither  investigate  the 
complaint,  nor  afford  any  practical  relief,  the  petition  was  neverthe- 
less ordered  to  lie  on  the  table  by  the  house,  on  the  ground  above 

^  Hans.  (1),  XXXIII.  215.  admissible  in  the  congress  of  the  United  State*. 

»  Huns.  (1),  XL.  910.  J.  of  S.  31st  Cons:.  1st  Sess.  136;  Cong.  Globe, 

«  Hans.  (3),  XL.  803.     A  petition  purporting  XL  168;  Same,  XIII.  55. 

to  pray  for  the  dissolution  of  the  Uuion  is  *  Hans.  (3),  XXXIII.  326. 


454  LEGISLATIVE   ASSEMBLIES.  [PaRT    V. 

suggested,  namely,  that  the  relief  prayed  for  was  within  the  power 
of  the  house,  though  not  likely  to  be  afforded.^ 


Section  IV.     Of  the  Presentation  and  Reading  of  Petitions. 

1109.  In  order  to  bring  a  petition  before  the  house  for  its  con- 
sideration, it  must  be  regularly  presented  and  read ;  and  until  this 
is  done,  no  order  can  properly  be  made  respecting  any  petition,  not 
even  for  its  lying  on  the  table.^  It  is  necessary,  then,  before  enter- 
ing upon  the  proceedings  which  may  take  place  with  reference  to 
petitions,  to  explain  in  what  manner  they  are  presented  and  received, 
and  their  contents  made  known  to  the  house. 

1110.  The  right  of  petition,  on  the  part  of  constituents,  impKes  a 
con-esponding  duty  on  the  part  of  the  representative  body,  to  receive 
and  consider  their  petitions.  In  order  that  petitions  should  be  con- 
sidered, they  must  in  the  first  place  be  brought  to  the  knowledge  of 
the  representative  body.  This  may  be  done  in  two  modes,  either 
by  the  petitioners  themselves  or  their  agents  presenting  their  peti- 
tions directly  to  the  house,  or  by  the  members  presenting  them  in 
the  house. 

1111.  The  first  of  these  two  modes,  or  a  course  equivalent  to  it, 
seems  to  have  prevailed  to  some  extent,  but  not  to  the  exclusion 
of  the  other,  from  the  time  of  James  I.  until  some  time  subse- 
quent to  the  restoration.  During  this  period,  and  especially  that 
part  of  it  in  which  grand  committees  formed  so  important  a  por- 
tion of  the  parliamentary  machinery,  it  appears  to  have  been  the 
practice,  at  least,  in  part,  for  petitioners  to  deliver  their  petitions 
directly  into  the  hands  of  the  appropriate  committees.  Sometimes, 
as  in  December,  1640,  a  general  committee  on  petitions  was  ap- 
pointed, whose  business  it  was  "  to  peruse  all  petitions  that  are 
come  in,  or  to  come  in  ; "  in  order  "  to  see  what  petitions  are  fit  to 
be  received,  and  to  what  committee  they  are  fit  to  be  referred,  and 
to  report  to  the  house."  ^  This  practice  —  of  petitions  being  deUv- 
ered  by  the  petitioners  themselves,  —  fell  into  disuse  probably, 
when  the  sitting  of  the  grand  committees  was  discontinued ;  and, 
at  the  present  day,  with  two  exceptions  which  will  presently  be 
stated,  aU  petitions  are  required  to  be  presented  in  the  house  by 
members. 

1112.  The  principal  mode,  therefore,  in  which  constituents  are 

1  Hans.  (3),  XXXI V.  1042,  1043, 1044.  »  Comm.  Jour.  II.  50;  Eusliworth,  IV.  97. 

a  Hans.  U.  188. 


Chap.  VIL]  petitions.  455 

at  liberty  to  approach  the  aggregate  representative  body,  being 
through  and  by  means  of  the  individual  members  of  that  body ;  it 
is  accordingly  held  to  be  one  of  the  most  undoubted  duties  of  a 
member  of  parliament,  when  requested  by  any  of  his  constituents, 
whether  immediate  or  not,  to  ofler  to  present  their  petitions,  and  to 
bring  the  contents  thereof  to  the  knowledge  of  the  house  of  which 
he  is  a  member.  But,  when  a  petition  is  thus  offered  or  presented, 
and  brought  to  the  knowledge  of  the  house,  the  duty  of  the  mem- 
ber to  whom  it  has  been  intrusted  is  discharged ;  he  is  not  thereby 
committed  to  the  support  of  any  of  the  opinions  advanced  by  the 
petitioners;  the  petition,  if  received,  becomes  the  property  of  the 
house  ;  and  any  other  member  has  as  much  riglit,  and  is  as  much 
under  obligation  to  make  motions  for  the  purpose  of  proceeding 
further  upon  it,  as  the  member  by  whom  it  was  introduced.^ 

1113.  Two  courses  only  seem  open  to  be  pursued  with  reference 
to  the  presenting  and  receiving  of  petitions,  namely,  either  to  allow 
all  petitions  to  be  presented  in  the  first  instance,  and  then,  upon 
reading  them,  to  determine  whether  they  are  proper  or  not  to  be 
received ;  or  to  determine  beforehand,  and  without  reading  them, 
whether  they  are  fit  to  be  received.  It  might  be  said  in  favor  of 
the  first  course,  that,  in  no  other  way  so  weU  as  by  hearing  a  peti- 
tion read,  could  the  house  determine  upon  its  character.  But,  on 
the  other  hand,  it  is  obvious,  that  if  it  were  the  duty  of  the  house  to 
hear  all  petitions  read  in  the  first  instance  that  might  be  offered,  its 
time,  and  the  time  of  its  constituents,  might  be  completely  wasted 
in  listening  to  petitions,  upon  which  it  would  be  impossible  to  pro- 
ceed, or  which  might  be  made  the  vehicle  of  insult  and  outrage 
towards  the  house  or  its  members.^  In  view  of  the  inconveniences 
by  which  this  course  would  unavoidably  be  attended,  it  is  the  estab- 
lished practice  in  parliament  to  determine  beforehand,  and  without 
reading  a  petition  in  the  house,  whether  it  is  fit  to  be  received. 

1114.  In  order  to  enable  the  house  to  proceed  in  this  manner,  it 
is  an  established  rule,  that  it  is  the  duty  of  every  member,  \\hen 
called  u})on  by  his  constituents  to  present  a  petition,  to  read  it 
through,  or,  in  some  other  mode,-^  to  become  master  of  its  contents, 
and  to  satisfy  himself  by  inquiiy  or  otherwise,  in  regard  to  aU 
extraneous  matters  relating  to  it,  so  as  to  become  possessed  of  all 
the  facts  upon  which  the  question  of  its  reception  depends.     K  the 

•    1  Chv.   Deb.   I.   74;    I'nrl.  Reg.   LXI.  379.  152;  Same,  151;     Same,  15-t,  155;  Same,  157, 

See  also  Reg.  of  Deb.  XII.  Part  II.  1961.  168;  Same,  205;    Same,  (3),  III.  173i,   1785, 

3  Haii^.  (1),  XXXV.  204.  1736;  Same,  LX.  645. 
»  Hans.  (1),  VI.  185;  Same,  XXXV.  149, 


456  LEGISLATIVE    ASSEMBLIES.  [PaRT   V. 

result  of  this  examination  and  inquiry  is  such  as  to  satisfy  the 
mind  of  the  member,  that  the  petition  ought  not  to  be  received, 
according  to  the  parliamentary  rules  above  mentioned,^  that  is, 
if  he  would  feel  it  his  duty  to  give  his  vote  against  receiving  it,  if 
offered  by  another  member,  or  if  he  would  consider  it  disorderly  in 
himself  or  any  other  member  to  use  the  language  it  contains  in 
debate,  it  is  his  duty  to  decline  offering  it  to  the  house.  The 
petitioners  may  then  put  their  petition  into  the  proper  form,  or  erase 
the  objectionable  passages,  so  as  to  entitle  it  to  be  received,  and 
cause  it  to  be  presented  by  the  same  or  some  other  member ;  or, 
•without  altering  their  petition,  they  may  carry  it  to  some  other 
member,  and  have  the  same  process  repeated ;  if,  on  the  other  hand, 
the  member  is  satisfied  that  the  petition  ought  to  be  received,  it  is 
his  duty,  as  already  observed,  to  offer  to  present  it  to  the  house. 
K  his  mind  is  left  in  doubt,  it  is  not  his  duty  to  decline  presenting 
the  petition,  but  to  offer  it  to  the  house,  with  a  special  statement  of 
the  facts,  upon  which  his  doubts  arise,  and  to  leave  it  to  the  house 
to  determine.^ 

1115.  If  a  member  on  examination  of  a  petition,  which  has  been 
intrusted  to  him  to  be  presented,  finds  passages  in  it  so  objection- 
able, that  he  can  neither  vouch  for  their  decency  and  propriety 
himself,  nor  refer  them  specially  to  the  house  for  its  consideration, 
the  only  course  which  he  can  properly  take  is  to  decline  presenting 
the  petition.  He  has  no  right  to  erase,  cut  out,  or  alter,  in  any  way, 
the  objectionable  parts ;  and  by  so  doing,  without  the  express  con- 
sent or  knowledge  of  the  petitioners,  the  document  would  cease  to 
be  their  petition.-^  The  reasons  for  this  rule  were  thus  forcibly  laid 
down  by  Mr.  Speaker  Manners  Sutton  :  "  K  members  w^ere  allowed 
to  make  erasures  at  their  own  discretion,  there  would  be  no  possi- 
bihty  of  draAving  a  line  of  distinction,  as  to  what  might,  or  might 
not,  be  altered,  and  petitions  might  be  converted  into  supporting  a 
wholly  different  object  from  that  intended  by  their  author.  There 
was  another  objection  to  such  a  course,  namely,  that  it  would  lead 
to  the  principle  of  causing  members  to  adopt  petitions  as  their  own, 
instead  of  being  merely  channels  of  conveying  petitions  to  the 
house,  without  committing  themselves  to  their  contents." 

1116.    A  member  having  a  petition  to  present,  who  has  prepared 
himself  beforehand,  as  above  mentioned,  and  taken  a  proper  time  for 

1  Ante,  964.  'Hans.  (3),  V.  1267,   1268;    Same,    VL  7* 

2  Han-'.  (1),  n.  1043;   Same,  XXXV.  151:     8,0. 
Same,  ?05,  206;  Same,  206,  207;  Same,  (3j, 

III.  1734,  1735,  1736 ;  Same,  LX.  645. 


Chap.  VIL]  petitions.  457 

the  purpose,  should  inform  the  house  that  he  has  such  a  petition 
intrusted  to  him  to  present ;  he  should  at  the  same  time  make  a 
statement  of  the  faets  necessary  to  be  known  by  the  house,  in  order 
to  enable  it  to  determine  whether  the  petition  is  a  fit  one  to  be 
received ;  ^  and  he  should  then  conclude  with  a  motion  that  the 
petition  be  brought  up  to  the  table.  This  motion,  however,  may 
be  made  with  equal  propriety  by  any  other  member.  It  would 
seem,  that  the  facts  thus  necessary  to  be  stated  by  a  member  offer- 
ing a  petition  should,  in  strictness,  be  all  which  relate  to  the  question 
of  reception,  and  upon  which  the  decision  of  that  question  may 
depend  in  the  particular  case,  namely,  the  names  or  general  desig- 
nation and  description  of  the  petitioners;  the  substance  or  a  brief 
summary  of  the  facts  alleged ;  the  prayer  of  the  petition ;  that  the 
member  offering  it  believes  the  signatures  to  be  genuine ;  if  the 
petition  is  in  a  foreign  language,  that  the  translation  by  which  it  is 
accompanied  is  correct;  if  there  are  any  erasures  or  interlinea- 
tions apparent  upon  the  face  of  it,  that  they  were  made  by  the 
petitioners  themselves,  or  with  their  consent  and  knowledge ;  that 
in  his  judgment  the  petition  is  expressed  in  fit  and  decent  language, 
and  contains  nothing  intentionally  disrespectful  to  the  house ; 
and  that  it  is  drawn  up  in  th(!  proper  form. 

1117.  In  practice,  however,  much  of  this  strictness  is  dispensed 
with,  in  view  of  the  confidence  which  the  house  reposes  in  its  mem- 
bers, and  for  the  purpose  of  facilitating  the  business.  According  to 
the  ordinary  course  of  proceeding,  all  that  is  required  of  a  member 
offering  to  present  a  petition  is,  that  he  should  state  the  substance 
and  prayer  of  it,  and  that  in  his  judgment  it  is  couched  in  fit  and 
decent  language  and  contains  nothing  intentionally  disrespectful  to 
the  house,  and  that  he  should  be  prepared,  at  the  same  time,  to 
answer  questions  with  reference  to  the  other  points  above  suggested, 
if  the  speaker  or  any  member  should  think  proper  to  make  them  the 
Bubject  of  inquiry.  K  the  member  entertains  doubt  with  reference 
to  some  of  those  points,  he  should  not  wait  to  be  interrogated,  but 
should  make  his  statement  full  at  once. 

1118.  The  only  secruity,  which  the  house  can  have  against  being 
insulted  by  the  language  of  petitions,  being  the  confidence  which 
it  reposes  in  its  members,  first,  that  they  will  faithfully  read  or 
otherwise  obtain  a  knowledge  of  the  contents  of  all  petitions  \\  hich 
they  undertake  to  present;  and,  secondly,  that  they  will  ti-uly 
inform  the  house  of  the  opinions  which  they  form  of  tlie  language 

1  Hans.  (1),  XXVIII.  639;  Same,  XXX.  1007;  Same,  XVII.  220;  Same,  VIII.  G.^4;  Same, 
XXXV.  149. 

39 


458  LEGISLATIVE    ASSEMBLIES.  [PaRT   V. 

of  those  petitions;  it  is  an  established  rule,  that  no  member  is  at 
liberty,  except  under  extraordinary  circumstances,  to  offer  a  petition 
to  the  house  which  he  has  not  read,^  and  to  the  language  of  which 
he  is  not  prepared  to  give  his  sanction,  or  in  reference  to  which,  he 
is  not  willing  to  state  the  views  which  he  entertains.^  If  a  mem- 
ber offers  to  present  a  petition,  and,  on  being  questioned  as  to  the 
language  in  which  it  is  composed,  declares  that  he  has  not  read  the 
petition,  or  will  neither  say  that  in  his  judgment  the  language  is 
decorous  and  proper,  nor  express  the  views  which  he  entertains  of 
it,  such  petition  will  be  refused,  or  the  member  will  be  directed  to 
withdraw  it.^  Where  a  member,  on  presenting  a  petition,  insisted 
that  he  was  not  bound  to  form  any  opinion  as  to  the  language  of  it, 
and  would  not  say,  whether,  in  his  judgment,  it  was  intentionally 
disrespectful  or  not,  whatever  his  opinion  might  be,  the  motion  for 
bringing  up  the  petition  was  negatived  without  a  division."^ 

1119.  If  a  member  abuses  the  confidence  thus  reposed  in  him, 
either  by  negligently  and  carelessly  allowing  the  house  to  receive  a 
petition  which  is  disrespectful  or  improper  in  its  terms ;  or  by  wil- 
fully stating  that  it  contains  nothing,  which,  in  his  judgment,  is 
intentionally  disrespectful  to  the  house,  in  order  to  induce  the  house 
to  receive  it .;  such  member  thereby  implicates  himself  in  the  lan- 
guage of  the  petition,-^  and  becomes  liable  to  the  censure  and 
punishment  of  the  house. 

1120.  In  making  a  statement  of  the  contents  and  prayer  of  a 
petition,  by  way  of  introduction  to  the  motion  that  it  be  brought 
up,  a  member  cannot  be  called  upon  to  read  the  petition,  or  any 
part  of  it ;  6  nor  can  he,  if  he  desires  to  do  so,  be  permitted  to  read 
the  petition  itself;'  though  he  may  read  particular  parts,  or  notes 
or  extracts  of  particular  parts,  if  it  be  necessary  to  bring  them  to 
the  knowledge  of  the  house,  as,  for  example,  where  the  member 
wishes  to  present  them  specially  to  the  house  for  its  consideration.^ 
If  the  petition  is  to  be  read  in  full,  or  as  a  petition,  it  must  first  be 
received  by  the  house,  and,  upon  the  reading  being  ordered,  be  read 
by  the  clerk  at  the  table.  ^ 

1121.  When  a  member  having  a  petition  to  present  has  thus 

1  Hans.  (1),  XXXV.  149,  152;  Same,  151;  «  Pari.  Reg.  XXXV.  367,  368. 

Hat?ell,  U.  189,  note.  '  Hans.  (1),  XXXV.  79;  Same,  (3),  H.  342, 

sHatsell,  H.  189,  note;  Hans.  (1),  XXVIH.  343;  J.  of.  H.  24th  Cong.  2d  Sess.  182. 

5J9.  8  Hans.  (1),  XXXH.  89;  Same,  (3),LXXIX; 

8  Hans.  (1),  XXXV.  96.  Same,  II.  342,  343. 

*  Hatsell,  II.  189,  note.  »  Hans.  (1),  XXX.  1007. 

»  HatseO,  III.  240,  note. 


Chap.  VIL]  petitions.  459 

made  a  statement  of  the  facts,  which,  in  his  judgment,  entitle  it,  or 
which  he  desires  to  bring,  to  the  attention  of  the  house,  the  proper 
molion  (and  the  only  one)  to  be  made  is,  that  the  petition  be 
brought  up,  or,  in  other  words,  received  by  the  house.  This  motion 
is  generally  made  by  the  member  offering  the  petition,  but  may  be 
properly  made  by  any  other  member ;  and  is  to  be  seconded,  pro- 
posed to  the  house,  and  considered  in  the  same  manner,  and  accord- 
ing to  the  same  rules,  with  other  motions. 

1122.  If,  upon  the  introductory  statement,  and  before  the  motion 
to  bring  up  is  made,  it  appears  that  the  petition  is  clearly  objection- 
able and  not  fit  to  be  received,  on  account  of  some  informality,  or 
of  some  substantial  defect,  which  is  then  pointed  out  by  the  speaker 
or  other  members,  the  petition  may  be  withdrawn  by  the  member, 
at  his  own  pleasure,  in  order  that  the  informaUty  may  be  corrected, 
or  a  new  petition  prepared.  The  suggestion  of  the  speaker  or  the 
opinion  of  experienced  members,  offered  at  this  point  in  the  pro- 
ceedings, is  usually  followed;  but  the  member  may  nevertheless 
persist  in  offering  the  petition,  and  may  accordingly  move  that  it  be 
brought  up.  U  such  defect  or  informality  is  not  discovered  or 
alluded  to,  until  after  the  motion  to  bring  up  has  been  made, 
seconded,  and  proposed,  the  petition  and  motion  can  then  only  be 
withdrawn  in  the  usual  manner. 

1123.  Inasmuch  as  the  facts,  upon  which  the  question  of  receiv- 
ing a  petition  is  to  be  decided,  are  only  to  be  derived  from  the 
statements  of  the  member  by  whom  it  is  offered  to  be  presented ; 
it  is  the  established  practice  for  members  to  put  questions  to  him 
with  reference  to  those  facts,  at  all  stages  of  the  proceedings,  and  as 
well  after  as  before  the  motion  to  bring  up ;  and  the  member  may 
be  interrupted  in  his  statement  or  speech  for  that  purpose  ;  but, 
when  he  has  answered  the  inquiry  put  to  him,  he  is  then  at  liberty 
to  proceed  as  before,  unless,  from  his  answer,  it  appears,  that  there 
is  no  longer  any  ground  or  occasion  for  proceeding. 

1124.  The  member  offering  a  petition,  after  making  his  intro- 
ductory statement  as  above,  may  then  proceed  to  address  the  house 
c  n  all  the  topics  embraced  in  it ;  either  after  making  the  motion  to 
bring  up,  in  which  case,  it  must  be  seconded  and  proposed  before 
he  can  speak,  or  upon  the  supposition  that  he  T\dll  conclude  his 
speech  with  that  motion.  The  motion  to  bring  up  may  be  debated, 
and  proceeded  with,  in  the  same  manner  as  with  other  motions, 
according  to  the  ordinary  rules  of  debate.  If  this  motion  is  decided 
in  the  negative,  that  is,  if  the  house  refuses  to  allow  a  petition 
to  be  brought  up,  it  is  as  much  rejected,  as  it  would  be  upon  a 


460  LEGISLATIVE   ASSEMBLIES.  [PaRT   V, 

motion  to  that  effect.  If  the  motion  is  agreed  to,  the  petition  is 
then  brought  up,  and  delivered  in  at  the  clerk's  table,  by  the  mem- 
ber offering  it. 

1125.  The  proceedings  above  described,  in  the  presentation  and 
reception  of  petitions,  are  those  which  take  place  in  the  house  of 
commons,  and  involve  the  parliamentary  principles  which  relate  to 
this  subject.  Li  that  assembly,  the  motion  for  the  reception  of  a 
petition  is,  in  form,  that  it  be  brought  up,  that  is,  from  the  bar,  from 
which  aU  such  papers  when  presented  to  the  house  are  brought. 
The  practice  in  the  two  houses  of  congress,  and  in  other  legislative 
assemblies  in  this  country,  is  in  exact  conformity  with  the  principles 
above  established.  When  a  member  has  a  petition  to  present,  he 
prepares  himself  for  the  purpose,  according  to  the  principles  stated, 
in  such  manner  and  to  sucli  an  extent,  as  he  thinks  proper,  or  as 
the  rules  of  the  assembly  to  which  he  belongs  require  ;  and  having 
thus  prepared  himself,  and  obtained  the  floor  at  a  proper  time,  he 
makes  such  statement  as  he  thinks  proper,  and  thereupon  offers  to 
present  the  petition  to  the  assembly.  This  offer  is  considered  as 
an  application  to  the  assembly  to  receive  the  petition  by  general 
consent,  and  if  no  objection  is  thereupon  made,  the  petition  is  ac- 
cordingly received.  K  objection  is  made,  for  which  no  reason  need 
be  given,  this  raises  the  question  of  reception,  as  it  is  called.^ 

1126.  The  objection  may  be  accompanied  by  the  objector,  or  by 
some  other  member  with  a  motion  that  the  petition  be  not  received ; 
or  the  member  offering  to  present  the  petition,  or  some  other,  may 
thereupon  move,  that  it  be  received ;  or  if  no  motion  is  in  fact 
made,  the  offer  to  present,  objected  to,  is  considered  as  equivalent 
to  a  motion,  on  the  part  of  the  member  offering  to  present  the  peti- 
tion, that  it  be  received,  even  although  he  declares  that  he  does  not 
make  that  motion,  or  expressly  declines  to  make  it.'-^  The  question 
before  the  assembly,  therefore,  and  to  be  decided  in  the  ordinary 
manner,  is  on  the  reception  of  the  petition  stated  either  in  the  nega- 
tive or  affirmative  form,  but  generally  in  the  latter. 

1127.  The  question  of  reception  may  be  preceded  by  an  objection 
to  the  offer  to  present,  on  the  ground  of  order,  as,  for  example,  that 
the  petition  is  not  in  a  proper  form,  or  that  it  belongs  to  a  class 
which  is  excluded  altogether,  by  a  special  rule  of  the  assembly,  from 
being  received,'^  and  will  only  arise,  in  the  event  of  the  question  of 

»  Cong.  Globe,  III.  176,  177,  298;  Same,  IV.         «  Cong.  Globe,  VIIL  119. 
139;  Same,  94;  Same,  VIIL  119;  Same,  XIV.         »  J.  of  H.  26th  Cong.   2d    Sess.   95,    127; 
18;  Jefiferson's  Manual,  Sec.  XIX.  Cong.  Globe,  IV.  139 


Chap.  VIL]  petitions.  461 

order  being  overruled  by  the  presiding  officer  of  the  assembly.  If 
there  is  no  question  of  order,  or  the  question  of  order  is  overruled, 
the  (juestion  of  reception  is  then  to  be  put,  and  is  decided  upon  or 
otherwise  disposed  of  by  the  assembly,  like  any  other  question. 
But  until  it  is  decided  in  the  affirmative,  the  petition  is  not  received 
by  the  assembly,  nor  in  its  possession.  In  the  mean  time,  as,  for 
example,  if  the  question  of  reception  is  ordered  to  lie  on  the  table,^ 
the  petition  remains  in  the  possession  of  the  member  offering  to 
present  it.  Where  a  part  only  of  a  petition  is  objectionable  as 
against  order,  but  that  part  is  so  connected  with  the  residue  that  if 
the  latter  is  received  and  referred,  it  will  be  necessary  to  send  the 
whole  petition  to  the  committee,  in  that  case,  the  petition  cannot 
be  received.^ 

1128.  The  next  regular  step  in  the  course  of  proceeding  is  the 
motion  that  the  petition  be  read,  which  may  be  made  by  the  same 
or  any  other  member.  This  motion  is  essential,  in  order  to  bring 
the  contents  of  a  petition  to  the  knowledge  of  the  house ;  for,  as  has 
been  already  observed,  it  is  irregular  for  the  member  offering  a  peti- 
tion to  read  it  in  full,  either  in  his  introductory  statement,  or  as  a 
part  of  his  speech.  It  is  competent  for  members  to  address  the 
house  on  this  motion  ;  which  may  be  debated,  and  proceeded  with, 
in  the  same  manner  as  any  other  motion.  If  decided  in  the  nega- 
tive, that  is,  if  the  house  refuses  to  allow  the  petition  to  be  read,  it 
is  effectually  rejected ;  if  decided  in  the  affirmative,  the  petition  is 
read  by  the  clerk  at  the  table,  and  the  contents  of  it  are  then  fairly 
in  the  possession  of  the  house.  If,  upon  the  reading,  defects  of 
form  or  substance  should  appear,  which  had  been  overlooked,  or 
not  alluded  to,  the  member  may  stUl  be  permitted  to  withdraw  the 
petition,  for  the  purposes  above  mentioned. 

1129.  When  a  petition  has  thus  been  received  (but  not  before) 
and  read,  and  its  contents  brought  to  the  knowledge  of  the  house, 
it  is  then  to  be  proceeded  with,  and  considered  by  the  house  accord- 
ing to  the  various  forms  of  parliamentary  practice  relative  to  peti- 
tions. These  proceedings  will  form  the  subject  of  a  succeeding 
section. 

1130.  It  seems  to  have  been  usual,  at  an  early  period,  for  peti- 
tions to  be  presented  by  some  of  the  members  for  the  county  to 
which  the  petitioners  belonged ;  but  this  practice,  if  it  ever  prevailed, 


»  Reg.  of  Deb.  Xn.  Part  I.  833,  835,  836;      Snme,  XIII.  60,  229;  Same,  XIV.  18;  Same 
Cong.  Globe,  IV.  79,  80;  Same,  VII.  47,  94;      XVIII.  855. 

«  J.  of  H.  28th  Cong.  Ist  Sess.  119. 

39* 


462  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

and  it  probably  never  did  prevail  to  the  extent  of  becoming  a  rule, 
has  long  since  ceased;  petitioners  now  intrusting  their  petitions, 
if  public,  to  those  who  agree  with  them  in  sentiment,  and  are 
willing  to  maintain  their  views,  if  necessary,  and,  if  private,  to  those 
members  who  are  willing  and  able  to  undertake  the  conducting  of 
their  business  through  the  house.  To  the  general  rule,  however, 
that  every  member  is  competent  to  present  whatever  petition  may 
be  intrusted  to  him,  there  appear  to  be  two  exceptions,  which  will 
be  mentioned  in  the  succeeding  paragraphs. 

1131.  The  first  is,  that  no  member  is  competent  to  present  his 
own  petition ;  ^  for  the  same  reason  that  he  is  not  allowed,  as  a 
member,  to  participate  in  any  proceeding,  in  which  he  is  personally 
interested ;  but  must  intrust  his  petition,  like  other  petitioners,  to 
some  member  to  present.  A  member,  thus  interested,  is  entitled, 
of  course,  to  be  heard  with  reference  to  the  subject  of  his  petition, 
at  the  proper  time,  and  in  the  same  manner  that  members  are 
heard  with  reference  to  subjects  in  which  they  are  personally  inter- 
ested. 

1132.  The  second  exception  is  the  speaker,  who,  although  a 
member,  is  precluded  by  the  office  which  he  Ms,  from  participating 
in  the  ordinary  business  of  the  house.  It  is  consequently  irregular 
to  send  a  petition  to  Mr.  Speaker,  in  order  that  he  may  take  charge 
of  and  present  it  as  a  member.  When  a  petition  was  thus  sent  to 
Mr.  Addington,  when  speaker,  to  be  delivered  to  the  house,  he 
declined  doing  so,  and  gave  his  reasons  therefor  to  the  house  in  the 
following  terms :  "  The  objection  which  he  had  to  complying  with 
this  request,  was  solely  on  the  point  of  regularity  of  the  proceedings 
of  the  house.  Had  he  (as  speaker)  received  the  petition  in  this 
manner,  the  question  '  that  this  petition  be  now  received  or  brought 
up,'  could  not  be  put.  The  check  on  improper  petitions  would 
thus  be  done  away  with,  if  he  had  made  himself  the  channel  of 
communication  of  petitions,  or  any  other  paper  presented  to  him 
in  this  manner.  It  was  true,  that  a  vote  of  the  house  early  in  the 
session  (one  of  the  sessional  orders)  gave  the  speaker  power  to 
present  papers  under  particular  circumstances,  to  the  house,  but  he 
thought  that  this  instance  would  have  exceeded  the  proper  bounds 
of  his  power."  ^  A  further  objection,  not  of  so  formal  or  technical 
a  character,  might  also  have  been  stated,  namely,  that  if  it  was 
competent  to  the  speaker  to  make  a  motion,  either  with  or  without 

»  Hans.  (3),  LIX.  475,  476.    But  see  also         «  Pari.  Reg.  XXXII.  2. 
J.  of  H.  32d  Cong.  1st  Sess.  73. 


Chap.  VIL]  petitions.  463 

its  being  seconded,  and  thereupon  to  put  a  question,  that  the  peti- 
tion in  his  possession  be  received  by  the  house,  unless  this  motion 
were  acquiesced  in  by  the  unanimous  consent  of  the  house,  it 
would  be  necessary  for  the  speaker  to  take  such  a  part  in  the  pro- 
ceedings, as  would  not  be  competent  to  him  in  olher  cases. 

1133.  The  reasons,  assigned  by  Mr.  Speaker  Addington,  as 
quoted  in  the  preceding  paragraph,  for  not  delivering  to  the  house 
a  petition  which  was  sent  to  him,  seem  to  imply  that  he  thought 
the  petitioners  expected,  in  this  way,  to  get  their  petition  before 
the  house,  without  a  vote  on  the  question  of  reception ;  but  it  may 
be  fairly  presumed  that  if  he  could  have  otherwise  presented  the 
petition,  consistently  with  the  rules  of  order,  he  would  have  done  so. 
In  this  country,  petitions  are  often  presented,  and  particularly  in 
both  branches  of  the  congress  of  the  United  States,  by  the  presiding 
officers ;  but  in  the  senate  of  the  United  States,  the  twenty-fourth 
rule  seems  to  sanction  the  practice  by  taking  it  for  granted,  and  in 
the  house  of  representatives,  the  twenty-fourth  rule  expressly  pro- 
vides, that  "  Petitions,  memorials,  and  other  papers  addi-essed  to 
the  house,  shaD  be  presented  by  the  speaker,  or  by  a  member  in  his 
place."  A  petition,  presented  by  the  presiding  officer,  is  to  be 
treated  in  precisely  the  same  manner  as  if  presented  by  any  other 
member.^ 

1134.  It  was  stated  that,  with  two  exceptions,  all  petitions  were 
required  to  be  presented  by  members ;  these  exceptions  are  the 
petitions  of  the  corporations  of  London  and  Dublin.  The  corpora- 
tion of  the  city  of  London,  by  the  indulgence  of  parliament,  is 
entitled  to  the  privilege  of  causing  its  petitions  to  be  presented  at 
the  bar  of  the  house,  and  to  have  them  received  without  their  con- 
tents being  opened  by  a  member,  or  in  any  other  way,  communi- 
cated to  the  house.  This  indulgence  is  confined  strictly  to  petitions 
for  the  corporation  of  the  city  of  London,  signed  by  the  town 
clerk ;  the  corporate  style  of  which  is,  "  The  lord  mayor,  aldermen, 
and  commons,  of  the  city  of  London,  in  common  council  assem- 
bled." Petitions  from  the  livery  of  London,  in  common  hall 
assembled,  must  be  signed  by  those  individual  liverymen  who 
approve  of  its  contents,  and  must  be  offered  by  a  member,  like 
other  petitions.2  Petitions  of  the  corporation  of  the  city  of  London 
are  presented  at  the  bar  by  the  tvvo  sheriffs,"  or  by  one  only,  if  the 
other  is  a  member  of  the  house,^  or  is  unavoidably  absent,^  from 

1  Reg.  of  Deb.  X.  Part  I.  960, 1115, 1116.  *  Comra.  Jour.  XCII.  817.  136;  Same.  XC 

a  Hatsell,  III.  2.31,  note;  Same,  237,  note.  506;  Same,  LXXV.  218. 

•  Coinm.  Jour.  LXXXIII.  279. 


464  LEGISLATIVE  ASSEMBLIES.  [PaRT    V. 

sickness  or  other  cause.  If  the  sheriffs  are  both  members,  or  are 
both  unable  to  attend,  the  petition  may  be  presented  by  some  (two) 
of  the  aldermen,  and  several  (four)  of  the  common  council.^  The 
mode  of  proceeding  is  as  follows.  The  sHeriifs  attend  in  the  lobby, 
with  the  petition,  and  cause  the  house  to  be  informed  of  their 
attendance.  A  motion  is  then  made,  and  a  question  put,  that  the 
sheriifs  be  called  in.  If  this  motion  passes  in  the  affirmative,  the 
sheriffs  are  accordingly  called  in  to  the  bar,  where  they  present  their 
petition,  which  is  received  by  the  clerk,  and  by  him  brought  to  the 
table  of  the  house,  without  any  motion  or  question  made  therefor, 
and  the  sheriffs  then  withdraw.  When  they  are  withdrawn  from 
the  bar,  a  motion  is  made,  and  the  question  put  for  reading  the 
petition.  If  this  motion  is  agreed  to,  the  petition  is  read  by  the 
clerk ;  and  the  house,  being  thus  made  acquainted  with  its  contents, 
proceeds  to  dispose  of  it  in  such  manner  as  it  thinks  proper.^  If 
only  one  of  the  sheriffs  should  attend,  or  if  there  should  be  any 
other  variation  from  the  usual  course  of  proceedings,  the  reason  of 
the  absence  of  the  other,  or  of  the  unusual  course,  should  be  com- 
municated to  the  house  by  a  member,  before  the  question  is  put  for 
calling  in  the  persons  in  attendance,  in  order  that  a  negative  may 
be  put  upon  that  question,  if  there  is  any  irregularity  in  the  pro- 
ceeding.3  Petitions  from  the  corporation  of  the  city  of  Dubhn  are 
presented  in  the  same  manner  by  the  lord  mayor.*  This  privilege 
was  first  extended  to  the  city  of  Dublin,  at  the  request  of  the  cor- 
poration, in  1813.  No  privileges  of  this  sort  are  enjoyed  by  any 
individual  or  corporation  in  this  country. 

1135.  It  wUl  be  perceived,  that,  when  petitions  are  presented  in 
this  manner,  a  question  is  to  be  made  for  calling  in  the  persons  in 
charge  of  the  petition,  and  another  for  reading  it,  and,  upon  each 
of  these  questions  a  debate  may  ensue,  and  the  proceeding  be 
arrested ;  but,  in  general,  the  petition  is  allowed  to  be  brought  in 
and  read.  After  the  reading,  the  proceedings  are  the  same  as  in 
regard  to  other  petitions. 

1136.  It  not  unfrequently  happens,  that  a  single  member  has  a 
large  number  of  public  petitions  of  the  same  character  intrusted  to 
him  to  present ;  in  which  case,  it  might  be  convenient  both  for  such 
member  and  for  the  house,  that  the  whole  should  be  presented 
together  as  one  petition.  This  is  allowed  by  the  indulgence  of  the 
bouse,  if  the  member  will  undertake  to  say,  that  they  are  all  in 

1  Hatsell,  m.  237,  note.  a  Comm.  Jour.  LIX.  292. 

«  Hatsell,  m.  238.  ,  *  Comm.  Jour.  LXVUI.  299,  212,  219. 


Chap.  VIL]  petitions.  46r» 

Bubstantially  the  same  terms.     If  there  are  variations  in  them,  they 
should  be  separately  presented.* 

1137.  The  rules  which  have  thus  been  stated,  relative  to  the 
presenting  of  petitions,  belong  to  the  practice  of  the  house  of  com- 
mons. The  proceedings  in  the  lords  are  somewhat  different.  In 
the  latter,  as  in  the  former,  it  is  equally  the  duty  of  members  to 
present  petitions ;  and,  as  a  preliminary  proceeding,  to  make  them- 
selves acquainted  with  their  contents,  in  order  to  see  that  they  con- 
tain nothing  impertinent,  unbecoming,  or  improper.^  K  satisfied 
as  to  the  fitness  of  a  petition  to  be  presented,  the  lord  with  whom 
it  is  intrusted  is  at  Liberty  to  present  it,  and  to  have  it  read  by  the 
clerk,  without  any  question.  But,  in  presenting  it,  it  is  his  duty  to 
open  it,  that  is,  to  state  its  substance  and  prayer,  before  it  is  read;^ 
if,  upon  this  statement,  the  petition  appears  to  contain  matter, 
which  renders  it  unfit  to  be  received,  the  usual  course  is  for  the 
peer  by  whom  it  is  presented  to  withdraw  it ;  *  if  nothing  of  this 
kind  appears,  the  petition  is  laid  on  the  table  and  read.  In  opening 
a  petition,  the  member  may  comment  upon  it,  and  upon  the  general 
subjects  to  which  it  refers ;  and  a  debate  may  thereupon  take  place, 
in  the  same  manner  as  upon  any  other  subject.  No  question 
being  necessary  for  reading,  no  debate  can  properly  take  place  on 
that  subject.^ 


Section  V.    Of  certain  Classes  of  Petitions,  in  reference  to 
WHICH  THE  Preliminary  Proceedings  ake  peculiar. 

1138.  Before  entering  upon  the  consideration  of  the  proceedings 
which  take  place  relative  to  petitions  subsequent  to  their  being 
received  and  read,  it  will  be  necessary  to  take  notice  of  certain 
classes  of  petitions,  in  reference  to  which  the  preliminary  steps 
differ  in  some  respects  from  the  ordinary  course  above  described. 
These  subjects  will  furnish  the  matter  of  this  section.  The  several 
classes  of  petitions,  alluded  to,  are  the  foDowing: — 1.  Election 
petitions ;  2.  Petitions  relating  to  or  affecting  an  election  case ; 
3.  Petitions  containing  a  charge  against,  or  implicating  the  character 
or  conduct  of,  members ;  4.  Petitions  for  public  money ;  5.  Peti- 
tions against  bills,  for  the  levying  of  a  tax  or  duty;  6.  Private 
petitions ;  7.  Previous  petitions.     It  is  hardly  necessary  to  remark 

1  Haus.  (1),  XXXV.  859,  860,  861;    Same,         »  Lords'  Jour.  XIV.  22. 
873.  ♦  Hans.  (3),  XHI.  1185,  1187,  1188. 

»  Pari.  Keg.  LX.  315,  316;  May,  388.  »  Hans.  (3),  XUI.  1185, 1187, 1188. 


466  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

that  what  is  said  under  the  fourth  and  fifth  heads  has  no  direct 
application  in  this  country. 


Article  I.    Election  Petitions. 

1139.  In  the  house  of  commons,  a  system  of  proceeding  has  been 
established  by  a  series  of  statutes,  enacted  in  the  year  1770,  and 
since,  for  the  trial  of  controverted  elections  and  returns,  according 
to  which  cases  coming  within  the  statute  description  of  election 
cases  are  required  to  be  determined.  Petitions  relating  to  cases  of 
this  sort  technically  called  Election  Petitions  are  presented  and 
delivered  in  at  the  table,  as  a  matter  of  course,  and  without  any 
question ;  subsequent  proceedings  are  required  to  be  instituted 
thereon  according  to  the  mode  provided  by  the  statutes ;  and  no 
other  mode  of  proceeding  would  be  legally  vaUd  or  have  any 
legal  effect  upon  the  return  or  election  thus  brought  in  question. 
Petitions,  referring  to,  or  involving  an  inquiry  into  the  merits  of,  an 
election,  but  which  nevertheless  do  not  possess  the  characteristic 
features  of  an  election  petition,  cannot  be  proceeded  with  in  that 
manner,  but  only  according  to  the  ordinary  course  of  proceeding. 
Hence,  it  is  sometimes  a  question  of  importance  to  determine, 
whether  a  petition,  which  has  been  put  into  the  hands  of  a  member 
to  present,  is  or  is  not  technically  an  election  petition ;  if  it  is,  it 
should  be  presented  and  proceeded  with  in  that  form ;  if  not  it 
should  be  presented  in  the  usual  manner. 

1140.  When,  therefore,  a  petition  has  been  presented  as  an  elec- 
tioa  petition,  and,  on  the  attention  of  the  house  being  called  to  its 
contents,  it  appears  not  to  come  within  the  technical  description  of 
an  election  petition,  the  practice  is  to  allow  it  to  be  withdrawn,  in 
order  to  be  presented  in  the  usual  manner.^  If  an  order  has  been 
already  made  for  taking  such  petition  into  consideration  on  a  given 
day,  it  would  be  proper  previously  to  discharge  the  order ;  though 
allowing  the  petition  to  be  withdrawn  would  doubtless  be  equiva- 
lent to  a  discharge  of  it.  On  the  other  hand,  when  a  petition  is 
offered  to  be  presented,  in  the  usual  manner,  and,  upon  examina- 
tion of  its  contents,  it  appears  to  be  an  election  petition,'-^  or,  in  sub- 
stance, an  election  petition,-^  it  may  be  withdrawn,  in  order  to  be 
proceeded  with,  according  to  the  statutes ;  or,  if  a  petition  is  pre- 
sented and  read,  in  the  ordinary  course  of  proceedings,  and,  upon 

1  Comm.  Jour.  L XXXII.  317.  «  Comm.  Jour.  LXXXIV  766. 

«  Comm.  Jour.  LXXXII.  436. 


Chap.  VIL]  petitions.  467 

the  reading,  it  appears  to  be  an  election  petition,  and  is  within  the 
time  limited  by  the  sessional  order  of  the  house,  it  may  then  be 
proceeded  upon  as  such.^  It  is  presumed,  that  if  a  petition,  which 
has  been  proceeded  upon  in  the  usual  course,  should  at  any  time 
be  discovered  to  be  an  election  petition,  the  house  would  at  once 
vacate  or  rescind  all  orders  and  proceedings  relating  to  it,  and  allow 
it  to  be  withdrawn.  Where  a  petition  was  presented  and  read,  in 
the  usual  manner,  and  a  doubt  then  arose  whether  it  was  not  an 
election  petition,  the  speaker,  Mr.  Manners  Sutton,  said :  "  K  the 
house  were  clearly  of  opinion,  that  it  was  an  election  petition,  the 
regular  course  would  be  to  withdraw  it,  for  the  purpose  of  again 
presenting  it  in  that  form,  to  be  taken  into  consideration  in  the 
usual  way.  If  the  house  were  not  satisfied  on  the  subject,  the  most 
judicious  way  would  be  to  adjourn  the  debate,  to  give  members  an 
opportunity  to  look  into  the  petition,  and  to  make  up  their  minds."  ^ 
The  debate  was  accordingly  adjourned,  and  the  petition  ordered  to 
be  printed.  On  resuming  the  debate,  the  house  resolved  that  it 
was  an  election  petition,  and  made  the  usual  orders."^ 


Article  II.     Petitions  relating  to  or  affecting  an  Election  case. 

1141.  It  is  a  general  rule,  that  no  discussion  can  be  permitted  to 
take  place  in  the  house,  which  may  incidentally  or  directly  affect 
the  proceedings  upon  an  election  case,  or  prejudge  it  in  the  house, 
and  thus  tend  to  affect  the  committee  with  relation  to  any  point 
involved  in  such  case,  until  after  the  decision  of  the  committee.* 
The  same  rule  applies,  and  for  the  same  reason,  with  regard  to  peti- 
tions involving  inquiries  into  matters  connected  with  the  merits  of 
an  election.  If  a  petition  complaining  of  such  election  has  already 
been  presented  and  is  pending,  no  other  petition  involving  inquiries 
which  may  affect  or  prejudice  the  trial  of  such  election  can  be 
received,  until  the  election  is  determined.^  If  no  election  petition 
is  pending,  then,  in  order  to  prevent  the  receiving  of  a  petition, 
which  may  affect  or  prejudice  a  case  which  may  probably  arise, 
such  petition  must  appear  to  involve  matter  wliich  can  alone  be 
tried  by  an  election  committee.*^  In  the  former  case,  the  petition 
may  be  received,  when  the  election  has  been  determined;  in  the 
latter,  it  cannot  be  received  at  all,  unless  presented  as  an  election 

»  Comm.  Jour.  LXXIV.  45,  46,  62,  53.  «  Hans.  (2),  XVI.  1186. 

»  Hans.  (1),  XXXIX.  149.  »  Hans.  (3),  I.  574. 

»  Comm.  Jour.  LXXIV.  45,  46,  52,  63.  «  Hans.  (3),  VI.  G42,  643. 


468  LEGISLATIVE  ASSEMBLIES.  [PaRT  V 

petition.^  In  reference  to  petitions  of  this  description,  it  is  imma- 
teritil  what  the  prayer  is,  provided  only  that  the  inquiries  involved 
in  them  may  have  the  effect  above  specified.^  "When  a  petition  is 
offered  to  be  presented,  which,  upon  examination,  appears  to  con- 
tain "  matter  for  an  election  petition  only,"  the  course  is  to  allow 
it  to  be  withdrawn.^ 


Article  III.     Petitions  charging  or  implicating  Members. 

1142.  When  a  petition  is  to  be  presented,  containing  matter  of 
charge  against  a  member,  or  implicating  in  any  manner  his  charac- 
ter or  conduct,  for  the  purpose  of  a  parliamentary  inquiry,  it  is 
necessary  that  such  member  should  receive  notice  beforehand  of  the 
time  when  the  petition  is  to  be  presented ;  in  order  that  he  may 
then  be  in  attendance  in  his  place,  and  have  an  opportunity  of 
vindicating  himself,  if  he  sees  fit,  against  the  attack  upon  him,  at 
the  time  when  the  charge  is  made.  If  a  petition  of  this  kind  is 
offered,  without  such  notice  having  been  previously  given,  it  should 
be  withdrawn,  until  the  notice  is  given.*  This  course  of  proceed- 
ing is  analogous  to  what  takes  place,  when  one  member  makes  a 
charge  or  complaint  against  another.  The  first  step  in  that  case  is 
to  move,  that  the  member  in  question  do  attend  in  his  place  on  a 
certain  day;  and  both  parties  attending  accordingly,  the  former 
prefers  his  complaint. 

Article  IV.     Petitions  for  Relief  out  of  the  Public  Money. 

1143.  It  is  an  order  of  the  house  of  commons,  first  adopted 
December  11,  1706,^  and  made  a  standing  order  June  11,  1713,^ 
"  that  this  house  will  receive  no  petition  for  any  sum  of  money 
relating  to  public  service,  but  what  is  recommended  from  the 
crown." "     In  consequence  of  the  rule  thus  established,  whenever 

1  Han?.  (3),  VI.  642,  643.  6  Comm.  Jour.  XV.  211. 

2  Hans.  (3),  VI.  642,  643.  a  Comm.  Jour.  XVH.  417. 

8  Comm.  Jour.  XXXVI.  786.    It  was  ex-  '  The  uniform  practice  of  the  house  of  com- 

pressly  decided  by  Mr.  Speaker  Onslow,  that  mons  has  applied  this  order  not  only  to  peti- 

a  motion  to  bring  up  could  only  bo  withdrawn  tions  for  public  money,  or  for  money  relating 

by  the    unanimous    consent    of  the    house,  to  pubhc  service,  but  to  all  motions  whatever 

Comm.   Deb.    VH.   309,   314;    Comm.  Jour,  for  grants  of  money,  whether  on  public  or 

XXn.  79.  private  grounds.    Hatsell,  IIL  195, 196.   In  one 

■*  Hans.  (2^,  XVI.  T51.     See  also  J.  of  S.  instance,  the  rule  was  applied  to  the  receiving 

IV.  197,  263;  Hans.  (2),  XVH.  302;  Ann.  of  of  a  report.     Comm.  Jour.  XCIL  478. 
Cong.  L  55,  56;  Hans.  (3),  XXX VL  769,  855; 
Same,  XXXVL  761. 


Chap.  VIL]  petitions.  469 

any  petition  is  offered,  which  desires  relief  by  public  money,  and  a 
motion  is  made  for  bringing  up  the  petition,  before  the  question  is 
put  upon  this  motion,  it  is  necessary  that  the  recommendation  of 
the  crown  (which,  however,  goes  only  to  an  inquiry  by  a  select  com- 
mittee) should  be  signified  by  some  member,  authorized  for  the 
purpose ;  and,  if  the  chancellor  of  the  exchequer,  or  person  usually 
authorized  by  the  crown,  declines  to  signify  this  recommendation, 
the  house  cannot  properly  receive  the  petition.^  Under  the  denomi- 
nation of  petitions  for  money  relating  to  public  service,  are  included 
all  petitions  which  pray  directly  or  indirectly  for  an  advance  of 
public  money  ;2  for  compounding  any  debts  due  to  the  crown  ;^ 
for  remission  of  duties  payable  by  any  person ;  ^  and  for  compensa- 
tion for  losses.^  In  many  instances,  however,  petitions  have  been 
received,  praying  for  compensation  for  losses  contingent  upon  the 
passing  of  bills.*" 

1144.  A  petition,  which  states  any  distress,  and  prays  to  be 
relieved  from  the  charity  or  munificence  of  the  public,  ought  not,  in 
point  of  form,  either  to  prescribe  the  amount,  or  to  mention  the 
fund  out  of  which  that  relief  is  to  be  granted.  The  prayer  should 
be  general ;  and  it  should  be  left  open  to  the  consideration  of  the 
house,  what  the  nature  of  the  relief  shall  be,  and  to  what  extent.' 

1145.  The  rule  above  mentioned  applies  only  to  direct  petitions 
for  public  money,  and  is  not  to  be  extended  beyond  the  strict  neces- 
sity of  the  case ;  and,  therefore,  although  the  prayer  of  a  petition 
probably  contemplates  pecuniary  aid,  yet  if  the  terms  of  it  do  not 
necessarily  require  so  strict  a  construction,  the  recommendation  of 
the  crown  does  not  seem  to  be  necessary  to  the  receiving  of  the 
petition.^  When  the  interests  of  the  crown  are  only  indirectly  con- 
cerned, its  consent  is  equally  necessary,  but  may  be  signified  at 
any  stage  of  the  measm-e  founded  on  the  petition.^ 


Article  V.     Petitions  against  Tax  Bills. 

1146.  The  house  of  commons  found  it  necessary,  very  soon 
after  the  revolution,  to  establish  a  rule,  "  that  they  would  not  re- 
ceive any  petition  against  a  bill  then  depending,  for  imposing  a 

»  Hatsell,  III.  242.  «  Comm.  Jour.  XC.  136;    Same,  XCII.  469. 

»  Comm.  Jour.  XC.  42,  487,  507;  Same,  74.  '  Hatsell,  III.  241. 

«  Comm.  .Tour.  LXXV.  1G7.  8  Hans.  (2),  I.  1037. 

«  Comm.  .lour.  LXXX.  353.  »  Huns.  (1),  VHI.  465. 
»  Oomra.  /our.  LXXXVH.  571 ;  Same,  XC. 
487. 

40 


470  LEGISLATIVE   ASSEMBLIES.  [PaRT    V 

tax  or  duty  : "  upon  the  principle,  that  a  tax  generally  extending  in 
its  effect  over  every  part  of  the  kingdom,  and  more  or  less  affecting 
every  individual,  and  in  its  nature  necessarily  and  intentionally 
imposing  a  burden  upon  the  people,  it  can  answer  no  end  or  pur- 
pose whatever,  for  any  set  of  petitioners  to  state  these  consequences 
to  the  house  as  a  grievance ;  ^  and,  upon  the  further  ground,  that, 
if  the  house  were  to  receive  such  petitions,  it  would  be  impossible 
ever  to  pass  a  bill  for  a  tax,  inasmuch  as  so  many  different  petitions 
would  be  presented  against  it,  that  it  would  be  impossible  to  hear 
counsel  separately  upon  them  aU,  within  the  usual  time  of  the 
duration  of  any  one  session  of  parliament,^  and  in  the  mean  time, 
the  nation  might  be  undone  for  want  of  an  immediate  supply 
for  the  pubUc  use.'^  It  is  remarkable,  that  this  rule  was  always 
nugatory  as  regarded  petitions  from  the  city  of  London,  which,  as 
has  aheady  been  seen,  are  received  by  the  indulgence  of  the  house, 
without  their  contents  being  first  made  known.* 

1147.  The  practice,  under  this  rule,  which  has  recently  been 
abrogated,  was  always  confined  to  petitions  against  a  tax  for 
the  supply  of  the  current  year  ;  and  was  never  applied  to  petitions 
offered  in  a  subsequent  session,  praying  the  repeal  or  reconsidera- 
tion of  the  taxes  imposed  in  a  former  session.  No  public  service  is 
delayed  by  receiving  and  considering  such  petitions ;  nor  can  the 
time  of  the  house  be  better  employed  than  in  endeavoring  to 
lighten  the  biu'dens  of  the  people.^  In  1842,  when  the  practice  of 
the  house  of  commons  relative  to  public  petitions,  which  had  been 
gradually  introduced  for  the  purpose  of  facilitating  the  proceeding 
upon  them,  was  revised  and  reduced  to  the  form  of  standing  or- 
ders, an  order  was  added,  by  which  petitions  against  tax  bills  were 
put  upon  the  same  footing  with  other  petitions  of  a  pubhc  character 
and  allowed  to  be  presented  and  received  in  the  same  manner.^ 


Aeticle  VI.     Private  Petitions  and  Previous  Petitions. 

1148.  By  the  standing  orders  of  both  houses  of  parliament,  all 
private  bills  are  required  to  be  brought  in  upon  petition ; "  and  there 
is  an  order  also  made  in  each,  at  the  commencement  of  every  ses- 
sion,^ limiting  the  time  within  which  petitions  for  private  biUs  are 

1  Hatsell,  III.  233,  234.    The  foregoing  rule  «  Hatsell,  IH.  235,  note,  238. 

was  never  adopted  in  any  part  of  this  country.  *  Hans.  (3),  LXII.  296,  307;  May,  891. 

«  Hatsell,  III.  236.  '  May,  486. 

8  Comm.  Deb.  VIL  310,  311.  «  Comm.  Standing  Orders,  Nn.  104. 
*  Hatsel!,  Ul.  237,  note. 


Chap.  VII.]  petitions.  47] 

required  to  be  presented ;  after  the  expiration  of  which,  no  petition 
will  be  received,  except  by  special  leave  of  the  house.  In  conse- 
quence of  the  existence  of  this  order,  it  is  sometimes  an  important 
question  to  determine,  whether  a  petition,  which  is  offered  to  be 
presented,  is  or  is  not  a  private  petition.  On  this  question,  as  on 
others  of  a  similar  nature,  the  speaker  gives  his  opinion,  but  it  is 
for  the  house  to  decide.  If  the  speaker's  opinion  is  that  the  petition 
is  a  private  one,  the  member  presenting  will  withdraw  it.^ 

1149.  U  a  petition,  which  has  been  intrusted  to  a  member  to 
present,  is  a  petition  for  a  private  bill,  and  the  time  for  the  pre- 
sentation of  such  petition  has  elapsed,  it  is  necessary,  in  order  to 
obtain  the  permission  of  the  house  to  present  it,  to  present  a  peti- 
tion, praying  for  leave  to  present  a' petition  for  the  bill,  and  staling 
peculiar  circumstances  which  account  for  the  delay,  and  justify 
the  application  for  a  departure  from  the  standing  orders.  On  this 
petition  being  presented,  leave  may  immediately  be  given  or  re- 
fused ;  or  the  petition  may  be  referred  to  a  select  committee,  and, 
upon  their  report,  leave  may  be  gi-anted  or  refused,  either  immedi- 
ately, or  after  further  proceedings  upon  the  report.^ 


Section  VI.     Of   the  present   Practice   with    regard  to  the 

Presentation  of  Petitions. 

1150.  The  right  of  petition,  —  being  the  only  means  by  which 
the  people  have  it  in  their  power  to  concentiate  and  express  their 
opinions  relating  to  public  measures  in  such  a  manner  as  to  bring 
them  directly  to  the  knowledge  of  the  legislature,  —  has  been  exer- 
cised for  the  last  few  years,  to  an  extent  whoUy  unprecedented  in 
former  times.  In  the  five  years  ending  in  1831,  the  number  of 
public  petitions  presented  to  the  house  of  commons,  w^as  twenty- 
four  thousand  four  hundred  and  ninety-two  ;  in  the  five  years  end- 
ing in  1843,  the  number  presented  was  ninety-four  thousand  two 
hundred  and  ninety-two ;  and  in  the  five  years  ending  in  1848,  was 
sixty-six;  thousand  five  hundred  and  one.^ 

1151.  It  has  been  seen  from  the  statement  above  made  as  to 
the  regular  parliamentary  course  of  proceeding  in  receiving  peti- 
tions, that  the  presentation  of  a  petition,  even  though  no  subse-. 

1  Pari.  Reg.  LXII.  261.  on  mo/ton, -without  any  previo  as  petition.    See 

*  May,  632.    In  one  case,  leave  was  given,     Comm.  Jour.  LVH.  259. 

«  May,  389. 


472  LEGISLATIVE  ASSEMBLIES.  [PaRT   V 

•  quent  proceedings  were  intended  to  be  founded  upon  it,  might, 

though  it  did  not  usually,  or  to  any  inconvenient  extent,  give  rise 
to  a  debate ;  it  being  in  the  power  of  the  member  presenting  a 
petition  to  speak  at  length  if  he  chose,  on  the  topics  suggested  by 
it,  either  as  preliminary  to  or  after  making  the  motion  that  it  be 
brought  up,  and  also  upon  each  and  every  one  of  the  motions  that 
might  be  subsequently  made  for  the  purpose  of  disposing  of  it. 

1152.  These  two  circumstances,  namely,  the  vast  increase  in  the 
number  and  variety  of  public  petitions,  and  the  unlimited  and 
illimitable  debate,  in  which  it  became  the  practice  to  indulge  in 
presenting  them,  were  found  to  create  so  many  interruptions  and 
delays  to  the  progress  of  other  public  business  in  the  house  of  com- 
mons, that  it  became  absolutely  necessary  to  make  some  attempt 
to  reconcile  if  possible,  the  conflicting  claims  to  the  attention  of  the 
house  to  which  they  gave  rise. 

1153.  It  was  at  first  attempted  to  provide  a  remedy  for  the  in- 
convenience, by  devoting  more  time  to  the  receiving  of  petitions. 
For  this  purpose,  it  appears  to  have  become  the  practice  in  the 
year  1830,  for  those  members  who  had  petitions  to  present,  to  at- 
tend each  day  in  the  house  at  ten  o'clock  in  the  morning;  the 
names  of  the  members  of  the  house  were  then  called  in  rotation 
by  some  one  of  them,  and  the  names  of  aU  who  did  not  answer, 
were  struck  out ;  the  remaining  names,  being  those  of  the  members 
present,  were  then  put  into  an  urn  and  drawn  out,  one  by  one,  and 
arranged  in  a  list  in  the  order  in  which  they  were  di'awn.  At 
three  o'clock  the  speaker  attended,  and  as  soon  as  a  house  was 
formed,  proceeded  to  call  the  names  as  they  stood  on  the  list ;  and 
as  they  were  called  the  members  presented  their  petitions  and  ad- 
dressed the  house,  if  they  thought  proper,  in  the  usual  manner. 
At  five  o'clock,  the  public  business,  as  it  stood  upon  the  order  book, 
commenced  ;  and  when  this  was  over,  the  petition  list,  if  not  pre- 
viously finished,  was  again  taken  up  and  proceeded  with  until  it 
was  completed  or  an  adjournment  took  place.  If  the  petition  list 
was  not  gone  through  with,  the  members  who  had  not  been  reached 
attended  again  on  some  other  day  for  the  purpose  of  being  put 
upon  the  list. 

1154.  At  the  commencement  of  the  session  in  1833,  in  order 
still  further  to  facilitate  the  presentation  of  petitions,  and  the  trans- 
action of  private  business,  morning  sittings  were  established  from 
twelve  to .  three  o'clock,  at  which  twenty  members  only  were  re- 


Chap.  VIL]  petitions.  473 

quired  to  form  a  house  ;^  the  public  business  commencing  a" 
before,  at  five  o'clock,  and  forty  members  being  still  necessary  to 
form  a  quorum  for  that  purpose.  At  the  same  time,  some  restrain* 
was  put  upon  the  liberty  of  speaking  on  the  presentation  of  pe- 
titions, by  the  adoption  of  a  resolution,  which  was  introductory 
of  important  changes  in  this  branch  of  parliamentary  proceedings. 
By  the  resolution,  it  was  provided,  that  when  a  member  offered  to 
present  a  petition,  he  should  only  be  allowed  to  state  the  contents 
and  prayer  of  it ;  the  petition  should  then  be  brought  up  to  the 
table  by  the  direction  of  the  speaker,  and  read  by  the  clerk ;  and 
no  member  should  be  allowed  to  speak  or  put  any  question  relative 
to  such  petition,  unless  it  contained  matter  in  breach  of  the  privi- 
leges of  the  house,  or  was  of  such  a  nature,  that,  according  to  the 
rules  and  orders  of  the  house,  it  could  not  be  received.-  The  right 
of  speaking  on  petitions  was  thus  altogether  taken  away,  except  in 
the  two  classes  of  cases  referred  to,  until  after  they  had  been  re- 
ceived and  read ;  leaving  members  still  at  liberty  to  speak  on  all 
the  subsequent  motions  as  before.  This  resolution  was  limited  in 
its  duration  to  the  session,  and,  it  is  believed,  was  not  renewed 
afterwards  for  more  than  a  single  session. 

1155.  Another  important  regulation  was  also  subsequently 
inti*oduced  in  the  same  session  of  1833,  with  reference  to  public 
petitions.  This  was  a  resolution  for  the  appointment  at  the  com- 
mencement of  each  session,  of  a  select  committee,  "  to  which  shall 
be  referred  all  petitions  presented  to  the  house,  with  the  exception 
of  such  as  complain  of  undue  returns,  or  relate  to  private  bills  ;  and 
that  such  committee  do  classify  the  same,  and  prepare  abstracts 
thereof  in  such  forms  and  manner,  as  shall  appear  to  them  best 
suited  to  convey  to  the  house  all  requisite  information  respecting 
their  contents,  and  do  report  the  same  from  time  to  time  to  the 
house ;  and  that  such  reports  do  in  all  cases  set  forth  the  number 
of  signatures  to  each  petition ;  and  that  such  committee  have 
power  to  direct  the  printing  in  extenso,  of  such  petitions,  or  of  such 
parts  of  petitions,  as  shall  appear  to  require  it."  ^  The  functions  of 
this  committee,  which  has  since  been  regularly  appointed,  seem  to 
have  superseded,  in  a  great  degree,  the  necessity  of  motions  to  print. 

1156.  The  morning  sittings  continued  to  be  held  during  the  ses- 

»  This  is  the  ground  upon  -which  Chancellor         «  Comm.  Jour.  LXXX^^I^.  10;  Hans.  (8) 
Kent  states,  (Kent's  Commentaries,  I.  234,     XXXVI.  437,  438. 
note,)  that  in  1833,  the  number  necessary  to        »  Comm.  Jour.  LXXXVIII.  95. 
form  n  quorum  in  the  house  of  commons  had 
been  reduced  from  forty  to  twenty. 

40* 


474  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

sions  of  1833  and  1834,  after  which,  not  being  found  to  be  effect- 
ual, they  were  discontinued ;  nor,  after  the  same  period,  does  it 
appear,  that  the  resolution  of  1833,  restricting  debate,  on  petitions, 
was  renewed.  On  the  accession  of  JMr.  Abercromby  to  the  speak- 
ership in  1835,  the  house,  upon  his  suggestion,  reverted  back  to  and 
adopted  as  a  rule  the  ancient  practice,  in  presenting  petitions, 
according  to  which  the  member  offering  a  petition  usually  confined 
himself  to  a  statement  of  the  contents  and  prayer,  without  under- 
taking to  speak  at  length  upon  the  subject  of  the  petition.  This 
became  subsequently  the  established  practice,  with  certain  excep- 
tions, in  which  the  importance  or  urgency  of  the  subject  required  a 
different  course.  In  1842,  certain  resolutions,  embodying  the  under- 
stood and  established  practice  of  the  house,  relative  to  the  presenta- 
tion of  public  petitions,  and  the  proceedings  thereon,  were  agreed 
to  and  declared  to  be  standing  orders. 

1157.  The  present  practice  of  the  house  of  commons,  with  refer- 
ence to  petitions,  as  regulated  by  these  orders,  and  the  antecedent 
usage  of  the  house,  is  as  follows.  In  the  first  place,  it  is  required 
by  an  order  of  March  20,  1833,  that  every  member  presenting  a 
petition  to  the  house  should  put  his  name  at  the  beginning  thereof  ;i 
which  is  always  printed  with  the  petition,  in  the  reports  of  the 
committee  on  public  petitions. 

1158.  The  members,  who  are  desirous  of  obtaining  precedence 
in  presenting  the  petitions  intrusted  to  them,  attend  at  the  table  of 
the  house,  at  half-past  three ;  or,  when  the  house  meets  at  an 
unusual  hour,  at  a  quarter  of  an  hour  before  the  time  appointed  for 
the  speaker  to  take  the  chair ;  they  then  ballot  for  precedence,  and 
their  names  are  entered  on  a  list  accordingly. 

1159.  The  time  appropriated  for  presenting  petitions  is  at  the 
conclusion  of  the  private  business.  At  this  time,  the  speaker  calls 
the  names  of  the  members  separately  as  they  stand  on  the  list,  and 
they  then  present  their  petitions.  When,  however,  petitions  relate 
to  any  motion  or  bill  set  down  for  consideration,  they  may  be  pre- 
sented before  the  debate  commences,  at  any  time  during  the  sitting 
of  the  house.  In  the  case  of  a  bill,  they  should  be  offered  imme- 
diately after  the  order  oi  the  day  for  proceeding  on  it  has  been 
read,  and  before  any  question  has  been  proposed.^ 

1160.  When  a  member  offers  to  present  a  petition,  not  being  a 
petition  for  a  private  bill,  or  relating  to  a  private  biU  before  the 
house,  he  is   required   to  confine   himself  to  a  statement  of  the 

1  HaDfi.  (3),  LXXIV.  714,  715.  »  May,  892. 


Chap.  VI  L]  petitions.  475 

parties  from  whom  it  comes,  the  number  of  signatures  attached  to 
■  it,  the  material  allegations  contained  in  it,  and  to  the  reading  of  the 
prayer  of  the  petition. 

1161.  When  a  petition,  on  being  offered  to  be  presented,  is  thus 
opened  to  the  house,  it  is  the  duty  of  the  speaker,  provided  the 
petition  contains  nothing  in  breach  of  the  privileges  of  the  house, 
and  is  also  proper,  according  to  the  rules  and  usual  practice  of  the 
house  to  be  received,  to  direct  it  to  be  brought  to  the  table  at 
once,  and  there  read  by  the  clerk,  if  required,  without  allowing 
any  debate,  or  any  member  to  speak,  upon  or  in  relation  to  such 
petition. 

1162.  If  a  petition  so  presented  relates  to  any  matter  or  subject, 
which  the  member  presenting  it  is  desirous  of  bringing  before  the 
house,  and  on  which  he  states  it  to  be  his  intention  to  make  a 
motion,  he  may  then  give  notice  that  he  will  make  a  motion, 
on  some  subsequent  day,  that  the  petition  be  printed  with  the 
votes. 

1163.  If  any  such  petition  complains  of  a  present  personal  griev- 
ance, for  which  there  is  an  urgent  necessity  for  providing  an  instant 
remedy,  the  matter  contained  in  it  may  be  brought  into  immediate 
discussion,  on  its  being  presented. 

1164.  All  other  petitions,  after  having  been  ordered  to  lie  on  the 
table,  are,  without  any  question  being  put,  referred  to  the  committee 
on  public  petitions.  The  duty  of  this  committee  is  to  classify, 
analyze,  and  make  an  abstract  of  the  petitions  so  referred  to  them, 
and,  from  time  to  time,  report  thereon  to  the  house.  The  reports 
of  the  committee  are  printed  twice  a  week,  and  point  out,  under 
classified  heads  not  only  the  name  of  each  petition  and  of 
the  member  by  whom  it  was  presented,  but  the  number  of  signa- 
tures, the  general  object  of  each  petition,  and  the  total  number  of 
petitions  and  signatures,  in  reference  to  each  subject ;  and  when- 
ever the  peculiar  arguments  and  facts,  9r  general  importance  of  a 
petition  require  it,  such  petition  is  printed  at  full  length  in  the 
appendix.^ 

1165.  From  the  foregoing  statement  of  the  existing  practice  of 
the  house  of  commons  relative  to  public  petitions,  it  seems  clear, 
that  while  measures  are  taken  to  bring  the  popular  voice  as 
expressed  by  petitions  to  bear  on  the  legislature,  in  the  only  man- 
ner in  which  it  can  be  legitimately  entitled  to  have  any  effect,  that 
is,  by  the  number  and  character  of  the  petitioners,  and  the  strength 

1  May,  891,  892. 


476  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

and  pertinency  of  their  representations  and  arguments ;  no  restric- 
tion is  put  upon  debate,  in  any  case,  in  which  it  is  really  necessary  . 
It  should  be  recollected,  also,  that  the  restricting  of  debate  upon  a 
petition  does  not  restrict  it  upon  the  subject-matter  of  the  petition. 
A  petition  is  not,  in  itself,  introductory  to  legislative  measures. 
Every  resolution  or  bill  must  commence  with  a  distinct  motion, 
which  may  be  made  without  reference  to  any  petition,  but,  in  pro- 
posing which,  a  member  is  at  liberty  to  enforce  the  claims  of  all 
petitioners,  who  have  presented  their  views  to  the  house.^ 

1166.  In  the  house  of  lords,  there  has  been  no  such  increase  in 
the  number  of  public  petitions,  as  has  taken  place  in  the  house  of 
commons,  wnthin  the  last  few  years ;  no  inconvenience  has  arisen 
from  the  debates  which  have  occiu-red  on  presenting  them ;  and 
consequently  no  necessity  has  been  felt  for  the  introduction  of  any 
general  system  of  classification  and  publicity .^ 

1167.  The  same  causes  which  have  induced  the  house  of  com- 
mons to  adopt  the  above-described  regulations,  with  regard  to 
petitions,  have  also  operated  in  this  country,  and  have  led  to  the 
establishment  of  certain  rules  in  the  house  of  representatives,  in 
congress,  by  which  it  is  provided  that  petitions  shall  not  be 
debated,  unless  the  house  shall  otherwise  decide,  on  the  day  on 
which  they  are  presented,  and  that  members,  ha\dng  petitions  or 
memorials  to  present,  may  hand  them  to  the  clerk,  with  an  indorse- 
ment thereon  of  their  names,  and  of  the  reference  or  disposition  of 
the  same.  In  the  latter  case,  the  petitions  or  memorials  are  to  be 
entered  on  the  journal,  subject  to  the  control  and  direction  of  the 
speaker.  Whether  the  above  or  similar  rules  may  become  neces- 
sary, to  faciUtate  the  proceedings  on  petitions,  in  any  other  assem- 
bly, will  of  course  depend  on  the  pressure  of  the  business  which 
ordinarily  comes  before  it. 


Section  VII.    Of  subsequent  Pkoceedings  on  Petitions. 

1168.  The  proceedings  on  a  petition,  subsequent  to  its  presenta- 
tion and  reception,  depend  partly  upon  the  subject-matter,  and 
partly  upon  the  feeling  with  which  it  is  regarded  by  Ihe  house.  K 
the  subject  is  one  upon  which  the  house  can  act  at  once,  and  is 
ready  to  do  so,  it  may  proceed  immediately  with  the  considera- 
tion of  it ;  otherwise,  the  petition  may  be  ordered  to  lie  on  the 

»  May,  891.  a  May,  389. 


Chap.  VIL]  petitions.  477 

table,  either  generally  or  until  a  specified  time,  or  a  future  day  may 
be  assigned  for  its  consideration.  In  the  latter  case,  the  petition  is 
an  order  of  the  day  for  the  day  so  assigned,  and  to  be  proceeded 
with  and  considered  accordingly. 

1169.  When  a  petition  is  taken  into  consideration,  whethei 
presently,  or  at  a  future  time  assigned,  if  it  alleges  the  existence  of 
facts,  which  require  to  be  investigated,  the  inquiry  may  be  either 
by  the  house  itself,  or  before  a  committee  to  whom  the  petition 
may  be  referred  for  the  purpose.  In  both  cases,  the  petitioners  are 
to  be  heard,  with  their  witnesses  and  evidence,  together  with  par- 
ties adversely  interested,  if  they  desire  it,  in  the  manner  already 
described  in  the  fifth  chapter  of  this  part. 

1170.  K  the  hearing  takes  place  before  the  house  itself,  it  may 
be  followed  by  proceedings  proper  for  the  immediate  disposition  of 
the  matter,  in  the  form  of  an  order  or  resolution,  according  to  the 
nature  of  the  subject,  expressing  the  opinion  of  the  house,  or  direct- 
ing, or  permitting  something  to  be  done,  as,  for  example,  that  a  bUl 
be  brought  in  agreeably  to  the  prayer  of  the  petitioner. 

1171.  K  the  petition  is  referred  to  a  committee,  by  whom  the 
subject  of  it  is  heard  and  investigated,  the  committee  proceeds  with 
the  investigation,  and  reports  upon  the  matter,  as  in  other  cases; 
and,  upon  their  report,  the  house  institutes  such  further  proceedings 
as  may  be  necessary  and  proper. 

1172.  Petitions  may  be  disposed  of,  as  we  have  seen,  by  the 
house  itself  acting  directly,  and  without  the  intervention  of  a  com- 
mittee ;  in  which  case,  out  of  the  great  variety  of  motions  that  may 
be  made  for  the  purpose,  those  most  usually  adopted  lead  to  the 
same  disposition  of  the  subject  with  the  resolutions  reported  by  a 
committee,  and,  therefore,  require  no  further  separate  notice.  But 
though  petitions  may  thus  be  disposed  of,  the  most  common  course 
is  to  refer  them,  in  the  first  instance,  to  a  committee.  The  form  in 
which  this  reference  takes  place  in  parliament,  and  in  this  country 
when  any  form  is  made  use  of,  requires  the  committee  to  examine 
the  matter  of  the  petition  and  to  report  the  same,  wdth  its  opinion 
thereupon  to  the  house.^  In  general,  petitions  are  referred  in  our 
legislative  assemblies,  simply,  and  without  any  words  expressive  of 
the  committee's  authority  ;  in  which  case  it  will  have  the  authority 
above  mentioned,  together  with  such  additional  power  as  may  be 
specially  conferred  upon  it,  and  such  other  as  may  belong  to  it  by 
the  rules  and  orders  of  the  assembly. 

1  J.  of  H.I.  129. 


478  LEGISLATIVE  ASSEMBLIES.  [PaRT   V. 

1173.  Under  the  authority  above  mentioned,  or  of  that  which 
results  from  the  simple  reference  of  a  petition,  a  great  variety  of 
reports,  depending,  of  course,  upon  the  nature  of  each  petition,  may 
be  made,  but  they  may  all  be  included  in  the  three  different  classes 
of,  first,  reports  in  favor  of  granting  the  prayer  of  the  petitioners ; 
second,  against  granting  the  prayer ;  or,  thirdly,  declining  to  grant 
it,  but  without  concluding  the  petitioners.  These  reports  are  con- 
sidered and  agreed  to  like  other  resolutions,  and  may  be  amended 
in  such  manner,  as,  for  example,  so  as  to  substitute  one  for  another, 
as  the  assembly  may  direct.' 

1174.  If  a  resolution  is  agreed  to  for  granting  the  prayer  of  the 
petitioners,  and  this  is  of  such  a  nature  that  it  can  only  be  effected 
by  passing  a  bill  in  their  favor,  the  assembly  may  thereupon  take 
the  necessary  steps  for  that  purpose;  or  the  committee  may  be 
authorized  either  specially  or  generally  to  report  a  bill  at  once.  If 
a  resolution  is  agreed  to  against  granting  the  prayer  of  a  petition, 
this  is  a  regular  judgment  of  the  assembly  upon  the  claim  which 
effectually  precludes  its  being  opened  or  set  up  afterwards.  If  the 
assembly  agrees  to  a  resolution  in  the  third  form,  it  is  usually  ex- 
pressed in  these  terms,  namely,  that  the  petitioners  have  leave  to 
withdraw  their  petition.  In  this  case  the  petition,  although  not 
granted,  is  not  refused,  but  may  be  withdrawn  and  presented  again. 


LAW  AND   PRACTICE 


ov 


LEGISLATIVE    ASSEMBLIES. 


PART    SIXTH. 


OF    THE    FORMS    AND    METHODS    OF    PROCEEDING    IN 
A    LEGISLATIVE    ASSEMBLY. 


(479) 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE   ASSE3IBLIES. 


PART    SIXTH. 

OF    THE    FORMS    AND    METHODS    OF    PROCEEDING    IN 
A    LEGISLATIVE    ASSEMBLY. 


FIRST   DIVISION. 

MOTIONS. 


CHAPTER  FIRST. 

OF     MOTIONS     IN     GENERAL. 

Section  I.    Introductory. 

1175.  The  judgment  or  wiU  of  any  number  of  persons,  consid- 
ered as  an  aggregate  body,  is  that  which  is  evidenced  by  the  con- 
sent or  agreement  of  the  greater  number  of  them.  In  order  to  as- 
certain the  existence  of  this  consent  or  agreement  in  reference  to 
any  particular  subject,  there  are  two  methods  of  proceeding,  which 
may  be  adopted. 

1176.  The  first  which  is  also  the  simplest  and  most  obvious, 
consists  merely  in  the  several  members  expressing  their  individual 
opinions  on  the  subject  before  them,  one  after  another,  in  such 

41  (481) 


482  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

manner  as  they  may  think  proper,  and  continuing  thus  to  express 
their  various  vieAVs,  until  some  one  opinion  or  judgment  is  seen  to 
unite  the  suffrages  of  a  majority.  This  mode  is  suiheient  for  all 
the  purposes  of  a  small  body  of  men,  —  such  as  constitutes  boards 
of  directors,  trustees,  and  the  like,  —  but  is  wholly  inadequate  to 
the  business  of  an  assembly  of  any  considerable  magnitude. 

1177.  The  other  mode,  which  is  alone  practicable  in  a  numerous 
assembly,  consists  in  the  submission  of  one  or  more  propositions 
in  the  form  of  questions  to  the  assembly,  upon  which  the  members 
express  their  opinions  by  a  simple  negative  or  afhrmative;  the 
proposition  thus  put  to  the  question  being  adopted  or  rejected  ac- 
cording as  the  votes  of  a  majority  are  given  in  its  favor  or  against 
it.  In  this  mode  of  proceeding,  the  several  propositions  may  be 
submitted  and  put  to  vote  one  after  another,  until  some  one  is 
agreed  to  ;  or  they  may  all,  in  the  first  instance,  be  announced,  and 
then  put  to  vote  separately.  This  method,  thus  simply  stated,  how- 
ever sufficient  it  might  be  for  the  purposes  of  an  assembly  convened 
for  a  special  object,  and  to  sit  but  for  a  short  time,  and  with  but 
limited  powers,  in  order  to  be  adequately  adapted  to  the  purposes 
of  legislation  in  modern  times,  has  been  expanded  into  a  system  of 
rules  by  the  application  and  use  of  which,  the  judgment  of  a  delib- 
erative assembly,  in  reference  to  every  topic  submitted  to  it,  may, 
for  the  most  part,  be  ascertained  with  precision,  promptness,  and 
facility. 

1178.  According  to  the  system,  which  has  thus  become  estab- 
lished, some  one  of  the  members  begins  by  submitting  to  the  others 
a  proposition,  in  reference  to  the  subject  which  he  wishes  to  bring 
forward,  or  to  that  under  consideration;  this  proposition  is  ex- 
pressed in  such  a  form  of  words,  that,  if  assented  to  by  the  requisite 
number,  it  will  purport  to  express  the  judgment  or  will  of  the  assem- 
bly; it  then  forms  a  basis  for  the  further  proceedings  of  the  assem- 
bly; and  is  assented  to,  rejected,  or  modified,  according  as  it 
expresses  or  not,  or  may  be  made  to  express,  the  sense  of  a  ma- 
jority of  the  members.  The  different  proceedings,  which  take 
place,  from  the  first  submission  of  a  proposition,  through  all  the 
changes  it  may  undergo,  until  the  final  decision  of  the  assembly 
upon  it,  constitute  the  subject  of  the  rules  of  debate  and  proceeding 
in  deliberative  assemblies. 

1179.  In  the  British  parliament,  in  which  the  system  of  parlia- 
mentary proceedings  has  been  elaborated  and  perfected,  by  the 
practice  of  three  centuries,  many  changes  in  the  forms  made  use  of 
have  taken  place,  which  will  be  pointed  out  in  the  course  of  the 


Chap.  L]  motions.  483 

work.     In  reference  to  the  subject  now  und(^r  consideration,  the 
change  has  been  such  as  is  indicated  in  the  preceding  paragraphs. 

1180.  In  the  earliest  periods  of  the  separate  existence  of  the 
house  of  commons,  as  an  organized  body,  the  forms  of  proceeding 
made  use  of  to  ascertain  the  sense  of  the  house  seem  to  have  been 
nothing  more  than  the  propounding  of  one  or  more  questions  for 
their  simple  assent  or  dissent. 

1181.  In  subsequent  times,  when  the  commons  had  assumed 
more  power  in  the  State,  and  had  begun  to  inquire  into  and  invesli 
gate  subjects  originating  with  themselves,  it  became  the  practice 
when  any  topic  was  introduced,  upon  which  the  members  expressed 
their  several  opinions,  for  the  speaker,  at  the  close  of  the  debate,  to 
frame  a  question  or  questions  corresponding  to  the  general  tenor  of 
the  speeches  on  the  one  side  and  on  the  other,  and  to  put  those 
questions  to  the  vote  of  the  house. 

1182.  At  a  later  period,  this  practice  became  somewhat  modified ; 
the  speaker  still  framing  the  question,  but  not,  in  all  cases,  waiting 
till  the  close  of  the  debate.  The  mode  of  proceeding  is  thus  stated 
by  ScobeU :  ^  "If  the  matter  moved  do  receive  a  debate  pro  et 
contra,  in  that  debate  none  may  speak  more  than  once  to  the 
matter;  and,  after  some  time  spent  in  the  debate,  the  speaker  col- 
lecting the  sense  of  the  house  upon  the  debate,  is  to  reduce  the 
same  into  a  question,  which  he  is  to  propound:  to  the  end,  the 
house,  in  their  debate  afterwards,  may  be  kept  to  the  matter  of  that 
question,  if  the  same  be  approved  by  the  house  to  contain  the  sub- 
stance of  the  former  debate."  This  mode  of  proceeding,  which  pre- 
vailed previous  to  the  restoration,-  continued  to  be  used  from  that 
period,  until  it  was  laid  aside,  and  the  present  system  established, 
in  the  time  of  Mr.  Onslow,  who  was  speaker  of  the  commons 
during  the  entire  period  of  the  reign  of  George  the  Second.  It  was 
attempted  on  one  occasion,  to  be  revived  by  Sir  Fletcher  Norton,*^ 
when  first  chosen  speaker  in  1770  ;  and,  although  no  notice  was 
taken  of  the  circumstance,  at  the  time,  in  consequence  of  the  thin- 
ness of  the  house ;  it  was  nevertheless  animadverted  upon  in  a  sub- 
sequent debate,  as  putting  a  dangerous  power  in  the  chair ;  and 
the  experiment  was  not  repeated.  Though  this  practice  has  long 
been  discontinued,  traces  of  it  still  remain  in  many  of  the  forms  of 
proceeding. 

1183.  In  consequence  of  this  change  of  practice,  it  became  an 
established  axiom,  that  the  motion  first  introduced  should  be  first 

1  Scobcll,  22.  8  Ciiv.  Deb.  I.  458,  473. 

2  Hatsell,  II.  112    Grey,  II.  235;  Same,  III. 
163;  Same,  X.  94. 


484  LEGISLATIVE    ASSEMBLIES.  [PaKI    VL 

determined  by  a  cgrresponding  question,  unless  it  was  superseded 
for  the  time  being,  by  some  other  motion  or  question  of  a  previous 
nature  before  proceeding  to  any  other  business.  This  maxim 
would  seem  to  imply,  that  every  matter  of  business  must  be  com- 
pletely finished  before  another  is  introduced,  so  that  the  house 
should  have  but  one  matter  pending  before  it  at  the  same  time ; 
but  in  practice  the  operation  of  this  principle  is  confined  to  the 
pending  question  ;  there  can  be  but  one  question  pending  at  the  same 
time,  though  there  may  be,  and  always  are,  in  every  legislative 
assembly,  numerous  matters  of  business  in  various  stages  of  pro- 
gress, and  all  pending  together.  In  the  two  houses  of  the  British 
parliament,  the  tendency  has  been  to  dispose  of  pending  business 
in  the  simplest  manner,  and  by  means  of  the  fewest  possible 
motions ;  while  in  this  country,  a  greater  variety  and  number  of 
motions  previous  in  their  nature  have  been  employed.  In  our  legis- 
lative assemblies,  it  is  usual  not  only  to  specify  by  rule,  the  particu- 
lar motions  which  alone  may  be  used  for  the  disposition  of  other 
business,  but  also  to  designate  the  order  in  which  they  may  be 
severally  moved,  and  put  to  the  question,  so  as  to  separate  one  from 
another,  and  be  all  pending  at  the  same  time. 

1184.  Every  matter,  which  is  the  subject  of  consideration  in  a 
deliberative  assembly,  can  only  be  determined  upon  a  question  put 
by  the  presiding  officer,  and  resolved  in  the  affirmative  or  negative, 
as  the  case  may  be  ;  ^  and,  according  to  the  modern  system  of  pro- 
ceeding in  parliament,  every  question  is  founded  on  a  motion  made 
by  some  member,  in  such  form  as  he  thinks  proper,  and  seconded 
or  approved  by  another  member,  in  the  same  form. 

1185.  When  a  proposition  is  made  by  two  members  in  this 
manner,  it  is  the  duty  of  the  speaker  to  state  it  to  the  house  in  the 
precise  terms  in  which  it  is  moved ;  when  thus  stated,  it  becomes  a 
question  for  the  decision  of  the  house  ;  and  must  be  disposed  of  by 
the  house  in  one  way  or  another,  before  it  can  proceed  with  any 
other  business.  In  the  lords,  when  a  motion  has  been  made,  a 
question  is  proposed,  "  that  that  motion  be  agreed  to;  "  but  in  the 
commons,  a  motion  when  seconded  becomes  itself  the  question 
without  any  such  formality .^ 

1186.  In  this  country,  the  rule  of  the  house  of  commons  gener- 
ally prevails ;  every  motion  when  seconded  is  propounded  by  the 
presiding  officer  as  a  question  for  the  decision  of  the  assembly. 
But  a  practice  in  this  respect  not  dissimilar  to  that  of  the  house  of 
lords  was  formerly  in  use  in  both  branches  of  congress,  and  per- 

1  May,  209.  2  May,  216. 


Chap.  L]  notice  of  motion.  485 

haps  elsewhere,  by  which  a  question  was  made,  when  a  motion 
was  introduced,  whether  the  asseml)ly  would  consider  that  motion 
or  not,'  This  proceedin<^  was  called  the  question  of  consideration, 
and  seems  to  have  had  the  eflect,  in  part,  of  the  previous  question. 
It  is  now  seldom  or  never  resorted  to  in  practice,  and  the  only  trace 
of  its  existence  is  found  in  a  rule  of  the  house  of  representatives, 
that  it  shall  not  be  put,  unless  it  is  demanded  by  some  member,  or 
is  deemed  necessary  by  the  speaker. 


Section  II.     Notice  of  Motion. 

1187.  Although  it  is  thus  the  right  of  members  to  originate 
propositions,  at  their  pleasure,  for  the  consideration  of  the  house ; 
and  any  member,  in  possession  of  the  house,  may  make  any  motion 
he  thinks  proper,^  yet,  in  practice,  this  right  is  subject  in  the  house 
of  commons  to  some  restriction  as  to  the  time  of  its  exercise ;  it 
having  been  the  custom  for  many  years  for  members  to  give  notice, 
one  day  at  least  beforehand,  of  the  motions  which  they  intend  to 
make;  and  this  usage  has  now  become  so  firmly  established, 
though  without  the  sanction  of  any  express  rule,  that,  with  some 
few  exceptions  only,  the  house  of  commons  will  not  allow  a  motion 
to  be  made,  unless  notice  has  been  previously  given.^ 

1188.  The  principal  object  of  requiring  these  notices  is,  by  atford- 
ing  the  members  a  knowledge  of  the  subjects,  which  are  to  be 
brought  forward  for  discussion,'^  to  prevent  the  house  from  being 
surprised  into  the  passing  of  votes,  which  it  might  be  necessary 
afterwards  to  rescind  ;  ^  and  the  practice  has  accordingly  been  found 
to  conduce  very  much  both  to  the  convenience  of  the  members,  and 
to  the  transaction  of  the  public  business.^ 

1189.  The  reason,  which  lies  at  the  foundation  of  this  usage, 
suggests  the  exceptions,  to  which  it  is  subject.  Motions,  which  do 
not  ordinarily  meet  with  opposition,  may  be  brought  on  by  consent 
of  the  house,  without  any  previous  notice ;  but  if  any  member 
objects,  they  cannot  be  pressed.  Questions  of  privilege,  also,  and 
other  questions  in  reference  to  matters  suddenly  arising,  may  be 
considered  without  previous  notice." 

1190.  In  order  to  enable  a  member  to  give  notice  of  a  motion, 

1  The  objection  must  be  made,  before  the  *  May,  213. 

motion  has  been  discussed,  or  the  question  of  *  Hans.  (2),  XV.  195. 

considenKlon  will  not  be  put.    J.  of  H.  17th  5  Hjujs.  (1),  VI.  113;  Same,  229,  230,  281 

Cong.  1st  Sess.  297.  «  Hans.  (3),  XXVI.  590. 

«  Hans.  (3),  IX.  594.  '  May,  214;  Hans.  (3),  XXX.  8. 

41* 


486  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

\\-here  the  subject  is  not  regulated  by  any  rules,  he  must  obtain 
possession  of  the  house,  fof  that  purpose,  in  the  same  manner  as  if 
he  was  going  to  make  a  motion ;  but  if  a  member  is  in  possession 
of  the  house  for  some  other  purpose  only,  as,  for  example,  to 
explain,  he  cannot  take  that  opportunity  to  give  notice  of  a  motion ; 
nor  can  a  notice  of  motion  be  regularly  given  by  a  member  in  the 
course  and  as  a  part  of  his  speech,  whde  addressing  the  house  in 

debate.^ 

1191.  When  the  practice  of  giving  notice  of  motions  was  first 
introduced,  members  gave  their  notices  in  the  same  manner  that 
they  made  motions,  or  participated  in  any  of  the  other  ordinary 
business  of  the  house ;  but,  within  a  few  years,  the  mode  described 
in  the  following  paragraphs  has  been  adopted  in  the  house  of  com- 
mons, and  is  now  established  as  the  course  of  proceeding  in  giving 
notices  in  that  house ;  in  the  house  of  lords  the  pressm-e  of  busi- 
ness is  not  so  great  as  to  require  any  strict  rules  in  regard  to 
notices.^ 

1192.  When  a  member  desires  to  give  notice  of  a  motion,  and 
has  fixed  upon  the  most  convenient  time  to  bring  it  forward,  he 
attends  on  some  day  at  the  meeting  of  the  house ;  and,  imme- 
diately after  prayers,  when  the  house  has  been  made,  enters  his 
name  on  what  is  called  the  notice  paper ;  which  is  placed  upon  the 
table,  for  the  purpose  of  receiving  the  names  of  all  who  desire  to 
give  notice  of  motions.  Each  name  on  this  paper  is  numbered ; 
and,  when  the  speaker  calls  on  the  notices,  which  he  usually  does 
at  about  half  past  four  o'clock,  the  clerk  puts  all  the  names  into  a 
glass,  and  draws  them  out  one  by  one.  As  each  number  is  drawn, 
the  name  of  the  member  to  which  it  is  attached  on  the  notice-paper, 
is  called.  Each  member,  as  he  is  called,  rises  and  reads  the  notice 
which 'he  is  desirous  of  giving,  and  afterwards  takes  it  to  the  table, 
and  there  delivers  it  fairly  written  out,  and  with  the  day  named  on 
which  he  proposes  to  make  his  motion,  to  the  second  clerk  assistant, 
who  enters  it  in  the  order  book.^ 

1193.  If  a  member  desires  to  give  more  than  one  notice,  at  the 
same  time,  he  must  wait,  before  giving  a  second,  third,  etc.,  until 
the  other  names  on  the  list  have  been  called  over ;  '*  but  one  mem- 
ber may  give  a  notice  for  another,  who  is  absent  at  the  time,'^  (for 
if  present  members  must  act  for  themselves,)'^  by  putting  the  name 


1  Hans.  (3),  H.  63,  64;  Pari.  Reg.  XXIL  6.  *  May,  213. 

J  May,  210.  6Hans.  (1),  II.  439. 

•  Mav,  212.  »  Hans.  (3),  LXVIH.  1002. 


Chap.  I.J  notice  of  motion.  487 

of  such  member  on  the  list,  and  answering  for  him  when  his  name 
is  called.^ 

1194.  It  is  not  necessary  that  the  notice  should  comprise  all  the 
words  of  the  intended  motion  ;  but  if  the  subject  only  is  stated  in 
the  first  instance,  the  question,  precisely  as  it  is  inl ended  to  be  pro- 
posed, should  be  given  in  the  day  before  that  on  which  it  stands  in 
the  order  book,  so  as  to  be  printed  at  length  in  the  votes  of  the 
day  on  which  it  is  to  be  made.^ 

1195.  "  No  positive  rule  has  been  laid  down  aa  to  the  time 
wliich  must  elapse  between  the  notice  and  the  motion ;  but  the 
interval  is  generally  extended  in  proportion  to  the  importance  of 
the  subject.  Notices  of  motions  for  leave  to  bring  in  bills  of  trifling 
interest,  or  for  other  matters  to  which  no  opposition  is  threatened, 
are  constantly  given  the  night  before  that  on  which  they  are 
intended  to  be  submitted  to  the  house;  and  there  is  a  separate 
notice  paper  for  unopposed  returns,  for  which  no  ballot  is  taken, 
and  motions  entered  upon  it  may  be  brought  forward  whenever  a 
convenient  opportunity  arises.  For  the  purpose  of  gaining  prece- 
dence, the  more  usual  mode  and  time  for  giving  notices  are  those 
already  described ;  yet  it  is  competent  for  a  member  to  give  a  notice 
at  a  later  hour,  provided  he  does  not  interrupt  the  course  of  busi- 
ness, as  set  down  in  the  order  book."^ 

1196.  The  form  of  giving  notice  of  a  motion  is  sometimes 
adopted  for  purposes  whoUy  foreign  from  its  proper  object ;  as, 
where  a  member,  under  pretence  of  giving  notice  of  a  motion, 
expresses  his  opinion  of  some  pending  measure  in  terms  of  severity, 
contempt,  or  ridicule,  which  woidd  be  unparliamentary  if  used  in 
debate,  or  where  a  member,  in  the  form  of  a  notice,  inti-oduces  into 
the  order  book  what  in  point  of  fact  is  a  speech,  for  the  purpose  of 
having  it  printed  with  the  votes.  This  is  not  an  evil  of  much  prac- 
tical importance ;  nor  is  there  perhaps  any  mode  of  preventing  it ; 
but,  in  resorting  to  this  expedient,  as  a  mode  of  expressing  opinion, 
members  should  be  careful  not  to  give  ollence ;  as  the  house  may 
for  such  a  cause,  direct  the  notice  to  be  expunged  ;  *  or,  in  a  grave 
case,  might  subject  the  member  offending  to  the  censure  or  other 
])unishment  of  the  house. 

1197.  The  only  object  of  a  notice  being  to  secure  the  house 
against  surprise,  every  thing,  in  the  form  of  argument  or  debate, 
at  the  time  of  giving  it,  either  by  the  member  himself,  or  by  otliers, 

1  May,  213.  *  May,  215 ;  Hans.  (3),  XXIX.  304, 305, 306j 

»  May,  213.  Same,  LXVI.  306,  307. 

8  May,  213. 


488  LEGISLATIVE   ASSESIBLIES.  [PaRT    VI. 

is  irregular  ;i  but,  where  a  member  merely  stated  the  subject  of  hia 
motion  without  stating  the  motion  itself,  and  was  called  upon  to 
explain,  ]Mr.  Speaker  Addington  said  it  would  not  be  disorderly 
to  suffer  him  to  state  the  grounds  of  his  motion.^ 

1198.  At  any  time  previous  to  the  day  fixed  for  the  motion,  it  is 
competent  for  the  member  giving  the  notice  to  withdraw  it  alto- 
gether,-' or  to  postpone  it  to  a  future  day,'*  without  giving  any 
reason  for  his  conduct;^  consequently,  neither  can  the  member 
himself  be  permitted  to  address  the  house,  nor  can  any  debate  be 
allowed  to  take  place,  on  the  occasion  of  such  withdrawal  or  post- 
ponement.*^ 

1199.  When  a  member  has  given  notice  of  a  motion  to  be 
brought  forward  on  a  particular  day,  it  is  not  contrary  to  strict  par- 
liamentary usage,  for  another  member  to  give  notice  of  a  motion  on 
the  same  subject,  and  to  the  same  ejOfect,  for  a  previous  day ;"  though, 
as  it  is  understood  to  be  the  privilege  of  a  member,  who  has  under- 
taken a  particular  business  in  the  house,  not  to  have  that  matter 
taken  out  of  his  hands  by  another  member,  without  his  consent, 
such  an  interference  might,  under  some  circumstances,  be  a  breach 
of  parliamentary  courtesy.^ 

1200.  It  is,  however,  contrary  to  the  established  usage,  for  a 
member  to  waive  or  withdraw  his  notice  for  a  particular  day,  foj 
the  purpose  of  accelerating  it,  that  is,  bringing  it  forward  on  a  daj 
previous  to  the  day  originally  fixed ;  although  such  an  arrangement 
might  be  for  the  mutual  accommodation  of  those  members  present 
who  were  interested  in  the  subject;  inasmuch  as  what  might  be 
thought  by  the  members  present  a  matter  of  convenience,  might 
appear  quite  otherwise  to  those  who  were  absent;^  and,  for  the 
same  reason,  it  is  not  competent  for  a  member  to  bring  forward  a 
motion,  of  which  he  has  given  notice  for  a  future  day,  by  moving 
it  as  an  amendment  to  another  motion  pending  on  a  previous 
da>  ^0 

1201.  In  order  to  apportion  the  public  business  according  to  the 
convenience  of  the  house,  it  is  usual  for  the  house  of  commons,  at 
the  commencement  of  each  session,  to  set  apart  certain  days  on 
which  the  "  orders  of  the  day,"    or  matters  which  the  house  haa 

1  Pari.  Reg.  LXI.  209;  Cong.  Globe,  IV.  80.  ?  Hans.  (3),  XV.   390;    Same,  (1),  V.  151, 

2  Hans.  (1),  XL  110.  152. 

3  Hans.  (2),  XVH.  578.  8  Pari.  Reg.  (2),  IX.  132. 
*  Hans.  (1),  n.  110.  »  Hans.  (1),  XXUI.  394. 

»  Hans.  (2),  XVII.  578.  lo  Hans.  (3),  XXI.  225;  Same,  XXX.  8. 

«  Hans.  (1),  IT.  110;    Same,  (2),  XVIL  578; 
Same,  (1),  XXXII.  337;  Same,  XXXHL  631. 


Chap.  L]  notice  op  motion.  48S 

already  agreed  to  consider  on  some  particular  day,  shall  be  con- 
sidered and  disposed  of,  before  proceeding  upon  motions  of  which 
notice  has  been  given,  and  to  reserve  the  other  days  of  the  week  for 
the  consideration  of  original  motions,  before  proceeding  with  the 
orders  of  the  day.^ 

1202.  When,  therefore,  the  time  is  proper  for  proceeding  with 
notices  of  motions,  that  is,  after  the  orders  of  tiie  day  have  been 
disposed  of,  on  those  days  on  which  orders  of  the  day  have  prece- 
dence, and  at  the  commencement  of  the  sitting  on  those  days,  on 
which  notices  have  precedence,  the  speaker  calls  on  the  members 
who  have  given  notices  of  motions  for  that  day,  in  the  ordt.-r  in 
which  they  stand  on  the  list,  who  thereupon  proceed  with  their 
several  motions,  until  they  are  all  disposed  of.- 

1203.  Each  member,  whose  name  is  on  the  list,  may,  when  he 
is  called  on,  either  make  the  motion  of  which  he  has  given  notice ; 
or  withdraw  his  notice  for  that  day  and  renew  it  for  another ;  or  he 
may  decline  proceeding  with  it  altogether ;  and,  in  the  two  latter 
cases,  —  as  it  is  optional  with  the  member  to  proceed  or  not,  as  he 
pleases,  and  as  no  other  member  has  entitled  himself  to  proceed  by 
giving  the  requisite  notice,  —  the  house  has  no  power  to  proceed 
with  the  motion."^ 

1204.  K  a  member,  who  has  given  notice  of  a  motion,  is  not 
present  to  respond  to  his  name  when  it  is  called,  his  turn  is  lost, 
even  although  he  should  only  have  left  the  house  for  a  few 
moments.'* 

1205.  It  is  not  strictly  regular  for  a  member,  when  he  comes  to 
make  the  motion  of  which  he  has  given  notice,  to  vary  it  materially 
from  the  form,  which  he  has  adopted  in  his  notice ;  as,  for  example, 
where  the  notice  was  for  a  motion  to  hear  counsel  at  the  bar  on  a 
particular  subject,  and  the  motion  as  made  was  for  the  appoint- 
ment of  a  select  committee  on  the  same  subject;-^  but  if  the  motion 
as  made  do  not  so  far  differ  from  the  notice  as  to  change  the  charac- 
ter of  the  debate,  a  variation  in  point  of  form  merely  would  not 
seem  to  be  material. 

1206.  K,  at  the  time  fixed  by  the  notice,  the  motion  is  not  made, 
(whatever  may  be  the  cause,)  the  notice  is  said  to  be  dropped,  and 
the  motion  cannot  regulal-ly  be  proceeded  with  by  the  member,  as 
a  matter  of  right,  until  revived  by  a  fresh  notice.     In  su<ih  a  case, 

1  Mav,  210.  *  Hans.  (3),  Lll.  1247. 

2  Haiis.  (3),  VIII.  698,  707.  »  Hans.  (3),  LXXVIII.  717. 
»  Pari.  Reg.  XXXII.  43. 


490  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI. 

ho^^eve^,  the    house   may,  by  consent,  if  they  see   fit,  allow  the 
motion  to  be  made.^ 

1207.  There  is  another  restriction  as  to  the  time  of  making 
motions,  to  which  allusion  is  made  in  the  works  on  parliamentary 
law,  and  which  consequently  requires  some  explanation ;  though 
having  the  same  general  purpose  in  view  with  the  modern  usage  as 
to  notices,  it  appears  to  have  been  in  a  great  measure  if  not  wholly 
superseded,  as  to  its  practical  operation,  by  the  system  of  notices 
of  motions,  which  has  just  been  explained.  With  a  view  to  pre- 
vent motions  of  importance  from  being  made,  after  the  house  has 
proceeded  on  the  particular  business  appointed  for  the  day,  and 
where  such  motions  may  be  a  surprise  on  those  members  who  have 
left  the  house,  orders  have  been  adopted,  from  time  to  time,  by  the 
house  of  commons,  prohibiting  the  making  of  any  new  motion  after 
a  certain  hour ;  the  eifect  of  which  orders  was,  that  after  the  hour 
thus  specified,  no  new  motion  could  of  course  be  made,  without 
the  special  leave  of  the  house.  In  1695,  this  hour  was  fixed  at  one 
o'clock;  in  1701,  at  two;  in  1728,  at  four;  and,  in  1812,  it  was 
stated  in  debate,  and  not  denied,  to  be  at  five  o'clock.^ 

1208.  This  rule  has  been  modified,  since  its  fnst  introduction,  by 
a  usage,  which,  when  the  orders  of  the  day  are  proceeded  upon, 

.  makes  that  circumstance  equivalent  to  the  arrival  of  the  hour,  after 
which  no  new  motion  can  be  made  without  special  leave.  On 
those  days,  therefore,  on  which  the  orders  of  the  day  are  not  pro- 
ceeded upon,  no  new  motion  can  be  made  after  the  hour  fijted  by 
the  rule,  without  special  leave,  unless  the  member  making  it  has 
entitled  himself  to  do  so  by  giving  the  requisite  notice.  On  those 
days,  however,  on  which  the  orders  of  the  day  are  proceeded  upon,  so 
long  as  there  remain  any  orders  of  the  day  not  disposed  of,  it  is  not 
necessary  to  have  leave  to  make  a  new  motion,  though  it  should  be 
later  than  the  hour ;  but,  when  the  orders  of  the  day  have  been  all 
read  and  disposed  of,  no  new  motion  can  be  made  without  leave, 
though  it  should  be  much  earfier  than  the  hour  fixed  by  the  rule. 
The  new  motions,  which  it  appears  may  thus  be  made  without 
regard  to  time,  whilst  the  orders  of  the  day  are  under  consideration, 
must  of  course  be  such  as  by  the  rules  of  proceeding  admit  of 
being  proposed  by  way  of  amendment  to  some  one  of  the  legiti- 
mate questions  arising  in  the  orders  of  the  day.^ 

1  Hans.  (l),XXXn.  803.  3  HatseU,  XL  183,  184, 185;    Hans.  (1),  XXL 

2  Hatsell,  II.  183,  184, 185;  Hans.  (1),  XXL     124,  125. 
124,  125. 


Chap.  L]  making  of  motion.  491 

1209.  This  rule  admits  of  the  same  exceptions,  as  the  usage 
requiring  notices,  namely,  that  questions  of  privilege,  such,  for 
example,  as  motions  for  writs  to  fill  vacancies,  —  unoppoi^ed 
motions,  and  matters  suddenly  arising  ^  may  be  brought  forward 
after  the  hour  limited. 

1210.  Whether  any,  and  what  notices  of  motion,  may  or  must 
be  given  in  a  legislative  assembly,  \v'ill  depend  of  course  for  the 
most  part,  on  its  peculiar  character,  and  on  the  nature  and  extent 
of  its  business,  and  will  be  provided  for,  and  regulated  by  its  rules 
and  orders.  In  both  branches  of  congress,  ten  days'  notice  is 
required  to  be  given,  previous  to  bringing  in  a  bill  or  resolution, 
which  has  been  passed  in  one  house  and  rejected  in  the  other.  In 
the  lower  house  of  congress,  besides  the  preceding,  notices  are  only 
required  to  be  given  of  motions  for  leave  to  introduce  bills.  Li  these 
cases  one  day's  notice,  at  least,  is  required  to  be  given,  either  in  the 
house,  or  by  filing  a  memorandum  thereof  with  the  clerk,  and 
having  it  entered  on  the  journal.  In  some  of  the  States  notices  are 
made  necessary  by  constitution,  to  be  given  of  certain  specified 
motions.  It  is  quite  common,  also,  to  provide  by  rule,  in  our 
legislative  assemblies,  that  certain  motions,  when  first  made,  shall 
lie,  for  a  specified  length  of  time,  before  they  are  considered.  This 
is  a  sort  of  notice  of  motion. 


Section  III.     Making  and  Withdkawal  of  Motions. 

1211.  When  a  member  has  entitled  himself  to  make  a  motion, 
by  giving  previous  notice  of  his  intention  in  conformity  with  the 
usage  already  explained,  and  is  called  on  by  the  speaker  at  the 
proper  time,  he  is  then  and  not  before  at  liberty  to  rise  and  make 
his  motion.  In  other  cases,  a  member  desiring  to  make  a  motion,^ 
or  to  address  the  house,  or  indeed  to  make  any  communication 
whatever  to  it,  —  must,  in  parliamentary  phrase,  obtain  the  floor,  or 
get  possession  of  the  house,  for  that  purpose. 

1212.  In  order  to  do  this,  the  member  rises  in  his  place,  and 
either  merely  presents  himself  to  the  notice  of  the  speaker,  or 
addresses  him  by  his  title,  as  "  Mr.  Speaker  ; "  the  latter  thereupon 
points  to  the  member,  or  calls  him  by  his  name;  the  member  being 
thus  recognized- by  the  speaker,  and  pointed  out  by  him  to  the  house, 
as  being  entitled  to  their  attention,  is  then  at  liberty  to  proceed  and 

1  Hutsell,  II.  183,  184, 185;  Hans.  (1),  XXI.      «  Pari.  Reg.  (1),  II.  34,  35. 
124,  135. 


492  LEGISLATIVE    ASSEMBLIES.  [PaRT   Vl. 

make  his  motion.  This  can  only  be  done,  of  course,  when  the 
house  is  unoccupied,  or  when  the  member  in  apparent  possession 
of  the  floor  has  no  right  to  occupy  it.^ 

1213.  A  very  common  case,  in  which  a  member  is  in  apparent 
possession  of  the  floor,  without  a  corresponding  right  to  occupy  it, 
occurs,  when  a  member  speaking  suffers  his  allotted  time  to  run 
out  without  resuming  his  seat ;  in  which  case  any  other  member, 
having  a  right  to  speak  upon  the  question,,  may  interrupt  the 
former  and  take  the  floor  from  him.^  Another  very  common  occur- 
rence of  this  sort  takes  place,  when  the  business,  to  which  a  mem- 
ber spealcing  is  addressing  himself,  ceases,  by  lapse  of  time,  to  be 
any  longer  in  order ;  or  when  the  hour  arrives,  which  is  set  apart 
for  the  consideration  of  certain  other  business,  which  is  specially 
assigned  for  that  time.3  In  all  cases  of  this  kind  the  member 
speaking  may  be  interrupted,  and  the  floor  taken  from  him,  by  a 
motion  to  proceed  with  the  business  which  is  then  in  order ;  ^  but 
not  to  business,  which,  though  in  order,  is  not  entitled  to  prece- 
dence over  the  first;^ 

1214.  Whenever  a  member  rises  up  and  addresses  the  chair, 
even  though  he  thereby  interrupts  another  who  is  speaking  in  order, 
it  is  the  duty  of  the  presiding  officer  to  recognize  such  member,  and 
to  give  him  the  floor,  at  least  to  enable  him  to  explain  why  he 
claims  it,  and  proposes  to  address  the  assembly  ;  for  it  may  be,  that 
he  has  something  to  communicate,  which  the  assembly  has  a  right 
to  hear  at  once,  or  has  some  motion  to  make,  which  he  has  a  right 
to  make  immediately,  and  in  this  way  only  can  it  be  known,  whether 
such  member  has  not  a  right  to  proceed  ;  and  it  is  the  duty  of  the 
member  in  possession  of  the  floor,  to  yield  it,  and  resume  his  seat, 
until  this  question  is  determined.  To  interrupt  another  member, 
while  orderly  speaking,  wdthout  good  grounds  for  the  interruption, 
is  itself  a  breach  of  order,  as  it  is  of  decorum." 

1215.  In  making  a  motion,  the  member  submits  his  proposition 
to  the  assembly  directly,  and  not  hypothetlcally  or  conditionally, 
for  their  present  consideration  and  adoption,  maldng  use  of  apt 
words  for  the  purpose.  The  usual  form  of  making  a  motion  is  by 
the  words,  "  I  move,"  or  by  other  equivalent  terms.     In  seconding 

»  J.  of  H.  26th  Cong.  1st  Scss.  522,  248 ;  Reg.         »  J.  of  H.  VIII.  503 ;  .  Same,   32d  Cong.  2d 

of  Deb.  in.  1098;  Same,  VIII.  Part  2<1,  2547;  Sess.  155;  Cong.  Globe,  VIII.  426. 
Same,  XII.   Part  2,  2314;    Cong.  Globe,  III.         *  Cong.  Globe,  XXI.  1833. 
265;  Same,  VIIL  242;    Same,  426;  Same,  X.         »  j.  of  H.  31st  Cong.  1st  Sess.  1336. 
422 ;  Same.  XI.  687 ;  Same,  XXI.  1243, 1681.  •>  Reg.  of  Deb.  VIU.  Part  3,  3874. 

»  Cong.  Globe,  XX.  485. 


Chap.  L]  making  of  motion.  493 

a  motion,  the  member  says,  "  I  second "  such  a  motion,  or  the 
motion  of  such  a  member.  Other  language  of  the  same  import  is 
equally  etlectnal.  But  it  is  not  enough  merely  to  announce  an 
inttntion  to  make  or  second  a  motion,  without  making  or  second- 
ing it  accordingly.^ 

1216.    If  but  a  single  member  rises,  he,  of  course,  is  called  to  by 
the  speaker,  and  proceeds  mth  his  motion.     K  two  or  more  rise  at 
or  about  the  same  time,  and  present  themselves  all  together  to  the 
notice  of  the  chair,  the  member  who,  in  point  of  fact,  was  first  up, 
is  entitled  to  proceed  in  preference  to  the  others.     The  speaker, 
therefore,  in  such  a  case,  calls  upon  the  member,  who,  on  rising, 
was  first  observed  by  him,  or  who,  in  his  judgment,  was  first  up; 
but,  as  it  is  impossible  for  the  speaker  to  embrace  all  parts  of  the 
house  in  his  view,  at  the  same  moment,  it  may  sometimes  be 
obvious  to  the  house,  that  he  has  overlooked  a  member  who  has 
the  best  claim  to  be  heard.^     When  this  occurs,  it  is  not  unusual 
for  members  to  express  their  disapprobation  of  the  speaker's  decis- 
ion, by  calling  out  the  name  of  the  member,  who,  in  then:  opinion, 
is  entitled  to  be  heard ;  and,  if  the  general  voice  of  the  house  ap- 
pears to  give  him  the  preference,  the  member  called  upon  by  the 
speaker  usually  gives  way.     The  speaker  may  also  in  such  a  case 
inquu-e  of  the  house,  "  which  member  was  first  up,"  or  "  which 
member  should  be  heard,"  and  determine  the  question  by  the  voices. 
It  is  competent,  likewise,  for  any  member  to  call  in  question  the 
speaker's  decision ;  and  to  move  that  a  particular  member  be  heard ; 
which  motion  is  to  be  put  and  decided  like  any  other  question.     It 
would  seem  to  be  the  most  proper  course,  however,  where  the 
speaker's  decision  is  not  acquiesced  in,  to  put  a  question  first  on  the 
name  of  the  member  announced  by  the  speaker ;  and,  if  that  ques- 
tion should  be  decided  in  the  negative,  then  upon  a  name  or  names 
suggested  by  members.^ 

1217.  In  this  country  the  legislative  assemblies,  almost  invaria- 
bly, provide  by  a  special  rule,  as  is  the  case  in  both  houses  of  con- 
gress, that  when  two  or  more  members  happen  to  rise  at  once,  the 

1  Hans.  XXXni.  55,  70,  71.  upon  a  succeeding  one."   Bentham's  Political 

s  "  In  case  of  doubt  which  person,  out  of  a  Tactics,  Works  II.  347. 

number,  w.is  up  first,  it  is  the  province  of  the  »  May,  243;  Hatsell,  U.  105,  106;  Hans.  (1), 

speaker  to  decide:  that  is  to  say,  provision-  XVIII.   719.    When  two  or  more  members 

ally;  for  ultimately  nothing  can  be  decided  rise,  and  are  up  at  the  same  time,  for  the  pur- 

but  by  the  house.    Upon  each  occasion,  the  pose  of  addressing  the  house  in  debate,  there 

race,  if  so  one  may  term  it,  is  renewed;  by  are  other  rules,  in  certain  cases,  for  determin- 

starting  up  second,  on  any  occasion,  a  man  ing  the  right  of  precedence,  which  will  be 

does  not  acquire  the  right  of  being  first  heard  noticed  in  their  place. 

42 


491:  leCtISlatht;  assemblies.  [Part  VI, 

speaker  or  president  shall  name  the  member  who  is  to  speak.^ 
The  rule  of  the  senate  adds,  that  in  all  cases,  the  member,  who 
shall  first  rise  and  address  the  chair,  shall  speak  first.  The  speaker's 
or  president's  decision  in  this  respect  is  not  final  and  conclusive, 
but  like  every  other,  may  be  called  in  question,  and  set  aside  on 
appeal.2  The  rule  of  the  senate  of  the  United  States,  with  the 
addition  above  mentioned,  is  precisely  the  same,  practically,  with 
that  stated  as  the  rule  of  parliament  in  the  preceding  paragraph. 

1218.  When  a  member  is  rightfully  in  possession  of  the  house, 
he  cannot  be  deprived  of  it,  without  his  own  consent,  unless  some 
question  of  order,  or  of  privilege,^  or  incidental  to  the  proceedings, 
should  arise  ;  in  which  case,  his  right  to  proceed  may  be  interrupted 
and  suspended,  until  that  question  is  disposed  of.  K  the  member 
in  possession  of  the  house  should  be  speaking,  he  can  only  be  inter- 
rupted by  some  other  member  rising,  and,  at  the  same  time,  stating 
that  he  rises,  to  a  question  of  order,  or  privilege ;  *  and  then  the 
speaker  must  give  the  latter  possession  of  the  house.^  K  the  mem- 
ber in  possession  should  not  happen  to  be  speaking  at  the  time, 
another  may  obtain  possession  of  the  house,  by  rising  and  address- 
ing the  chair,  in  the  usual  manner.  A  member  may  also  obtain 
apparent  possession  of  the  house,  when  another  is  so  in  fact, 
through  the  inadvertence  or  inattention  of  the  speaker  or  other 
members. 

1219.  But,  in  none  of  these  cases,  can  the  member,  thus  getting 
temporary  possession  of  the  house,  avail  himself  of  it,  to  make  any 
other  motion  than  as  above  stated,  or  one  relating  to  order  or  privi- 
lege ;  and  if  he  attempts  to  do  so,  his  motion  wall  be  wholly  dis- 
regarded by  the  speaker,  and  the  member  having  previous  posses- 
sion of  the  house  will,  notwithstanding,  be  directed  to  proceed. 
If  a  motion  thuD  irregularly  made  should  be  stated  to  the  house  by 
the  speaker,  and  proceeded  upon  as  if  it  were  regular  and  proper, 
the  irregularity  will  be  at  once  corrected,  upon  its  being  suggested, 
as  a  matter  of  order,  to  the  speaker ;  and  the  business  will  then 
be  directed  to  proceed  precisely  as  if  the  motion  had  never  been 
made.''' 

1220.  Thus,  where  a  member  had  risen  to  address  the  house,  but, 


1  Cong.  Globe,  XL  353,  914.  *  Cong.  Globe,  XIII  603. 

2  J.  of.  H.  19th  Cong.  2d  Sess.  254;  Snmo,  ^  See  also  Reg.  of  Deb.  VIII.  Part  3,  3874. 
22d  Cong.  2d  Sess.  441;    Same,  30th  Cong.  •  Pari.  Deb.  VI.  98 ;  Ihuis.  (3),  XLV.  966- 
2d  Sess.  247;   Cong.  Globe,  X.  372;    Same,  See  also  Cong.  Globe,  XL  242;  Reg.  of  Deb 
XL  49;  Same.  XX.  2-31.  V.  886. 

3  Cong.  Globe,  VII.  200. 


Ch^p.  L]  making  of  motion.  495 

before  proceeding  with  his  speech,  another  member  rose  and  moved 
that  the  debate  be  adjourned,  the  speaker,  upon  his  attention  being 
called  to  the  subjc  t  as  a  matter  of  order,  said  that  the  first  was 
upon  his  legs,  and  in  pos^jession  of  the  house,  before  the  other 
moved  the  adjournment,  and  directed  the  former  to  proceed.^  Two 
members  having  risen  together,  one  of  them  was  named  by  the 
speaker;  but  the  other  proceeded  to  move  an  adjournment  of  the 
debate,  and  the  question  thereon  was  put  to  the  house  ;  the  fact 
being  then  stated  to  the  speaker,  as  a  matter  of  order,  he  disregarded 
the  motion  to  adjourn,  and  directed  the  member  whom  he  had  first 
named  to  proceed.^  A  member  speaking  to  order,  another  rose  to 
order,  but  moved  an  adjournment ;  the  irregularity  being  noticed, 
the  latter  gave  way,  and  the  former  proceeded,  no  notice  being 
taken  of  the  motion  to  adjourn.^ 

1221.  The  same  rule,  it  would  seem,  ought  to  apply,  where, 
whilst  one  member  is  addressing  the  house,  another  is  allowed  by 
the  courtesy  of  the  member  speaking  to  interrupt  him  so  far  as  to 
make  an  explanation  ;  the  latter  ought  not  to  b^  permitted  to  take 
that  opportunity  to  make  a  motion.  But,  if  the  explanation  is 
defen-ed,  as  it  regularly  should  be,  until  the  member  speaking  has 
concluded  his  speech,  there  seems  to  be  no  reason  why  the  member 
explaining  should  not  at  the  same  time  make  any  motion  which 
he  might  regularly  make  in  the  course  of  the  debate. 

1222.  If  the  member,  however,  in  possession  of  the  house,  is  not 
himself  entitled  to  keep  possession,  as  where  he  rises  and  asks  a 
question  of  another  member,  for  the  purpose  of  predicating  a  mo- 
tion upon  the  answer,  and  the  member  interrogated,  standing  up  to 
answer,  takes  the  opportunity  to  make  a  motion,  the  motion  ap- 
pears to  be  regularly,  though,  it  may  be,  under  the  circumstances, 
unfairly  made.^ 

1223.  According  to  the  form  of  proceeding,  when  it  was  the  cus- 
■'om  for  the  speaker  to  frame  a  question  from  the  debate,  a  motion 
made  by  any  member  in  the  house  of  commons  could  not  be  put 
to  the  question,  untU  it  had  been  "  debated,  or,  at  least,  seconded 
and  prosecuted  by  one  or  more  persons  standing  up  in  their  places ; " 
and  then  the  same  might  be  put  to  the  question,  if  the  question 
were  called  for  by  the  house,  or  their  general  sense  known,  on 
demand  or  inquiry  by  the  speaker.^     Agreeably  to  the  practice  aa 


1  Hans.  (3),  IV.  789,  790.  *  Pari.  Deb.  VI. 

»  Hiins.  (3),  XXXV.  359.  »  Scobell,  21. 

«  Hans.  (3),  XLV.  956.     . 


496  LEGISLATIVE  ASSEMBLIES.  [PaRT  VL 

now  established,  it  is  only  necessary  that  a  motion  maide  by  one 
member  should  be  seconded  by  another  in  order  to  entitle  it  to  be 
put  to  the  question. 

1224.  The  seconding  of  a  motion  seems  to  be  required,  on  the 
ground,  that  the  time  of  the  house  ought  not  to  be  taken  up  by  a 
question,  which,  for  any  thing  that  would  otherwise  appear,  has  no 
one  in  its  favor  but  the  mover.  Whatever  the  reason  of  the  rule 
may  be,  however,  it  does  not  appear  to  extend  to  the-  house  of 
lords ;  in  which  it  is  competent  for  any  lord  to  submit  a  question 
for  the  decision  of  their  lordships  without  a  seconder ;  ^  nor  is  it 
observed  in  practice,  when  the  house  of  commons  is  in  committee 
of  the  whole.2  There  are  some  exceptions,  also,  to  the  rule,  which 
will  be  adverted  to  hereafter. 

1225.  The  form  of  seconding  is  similar  to  that  of  making  a  mo- 
tion. The  seconder  rises,  and  addresses  or  offers  himself  to  the 
notice  of  the  chair,  and,  being  named  or  pointed  to  by  him,  and  thus 
put  in  possession  of  the  house,  declares  simply  that  he  seconds  the 
motion  of  such  a  member.  In  general,  if  a  motion  is  not  seconded, 
the  speaker  takes  no  notice  of  it  whatever,  and  the  business  of  the 
house  proceeds,  as  if  it  had  never  been  made.^ 

1226.  K  no  one  rises  immediately  and  seconds  the  motion,  it  is 
customary  for  the  speaker  to  inquire,  "  who  seconds  the  motion," 
or  "  whether  the  motion  is  seconded  ; "  and,  if  there  is  no  response, 
he  declares  the  motion  not  seconded,  and  takes  no  further  notice 
ofit.4 

1227.  If,  when  a  motion  is  made,  a  member  rises,  and  instead  of 
seconding  the  motion,  makes  a  new  one,  which  is  immediately  sec- 
onded, the  first  motion  falls  for  want  of  a  seconder,  and  the  other 
is  regularly  before  the  house ;  ^  but,  if  after  the  second  motion  is 
made,  the  first  is  seconded,  the  former  falls  for  want  of  being  sec- 
onded, and  the  motion  first  made  is  regularly  before  the  house. 

1228.  If  several  members  rise,  at  or  about  the  same  time,  for 
the  purpose  of  seconding  a  motion,  the  right  of  one  of  them  to  .pro- 
ceed in  preference  to  the  others  must  be  determined  in  the  manner 
already  stated,  where  several  members  rise  at  the  same  time  for  the 
purpose  of  making  a  motion.  But,  if  one  member  rises  to  second 
the  motion,  and  another  to  make  a  different  motion,  it  would  seem 
to  be  most  in  conformity  with  the  modern  practice,  for  the  speakei 

1  May,  216.  *  HatseU,  II.  120,  n.;  Pari.  Reg.  (1),  X.  66; 

«  May,  288.  Hans.  (3),  II.  547. 

»  Scobell,  21 ;  Hatsell,  IL  120,  n. ;  Pari.  Reg.  »  Comm.  Deb.  VIL  809. 
(2),  X.  65. 


Chap.  L]  seconding  of  motion.  497 

to  give  the  preference  to  the  former,  on  the  ground,  that  as  the  mo- 
tion, unless  seconded,  falls  to  the  ground  of  itself,  it  neither  requires 
any  other  motion  to  be  made  in  order  to  defeat  it,  nor  can  it  stand 
in  the  way  of  any  independent  motion  of  a  different  character.  It 
is  competent  for  the  house,  however,  to  determine  the  question  of 
priority  in  favor  of  the  latter,  and  thus  indirectly  defeat  the  motion 
for  the  time  being. 

1229.  As  no  subject  can  regularly  be  discussed,  but  upon  a 
motion  made  and  seconded,  motions  are  sometimes  made  as  well 
as  seconded,  for  the  purpose  of  giving  the  mover  or  seconder  a 
right  to  address  the  house  in  reference  to  a  particular  matter,  or  of 
obtaining  the  decision  of  the  house  upon  it  in  the  negative  of  the 
motion  ;  and,  therefore,  neither  the  mover  nor  seconder  is  under  any 
obligation  to  vote  for  the  motion  which  they  bring  before  the  house.^ 

1230.  The  rule,  requiring  motions  to  be  seconded,  admits  of  an 
exception  in  those  cases,  where  the  purpose  of  the  motion  is  to 
carry  into  effect  the  orders  or  resolutions  of  the  house ;  as,  for  ex- 
ample, where  the  house  has  ordered  that  a  bill  shall  be  read  a  sec- 
ond or  third  time  on  a  given  day,  a  motion  on  that  day,  that  the 
bill  be  now  read  accordingly,  need  not  be  seconded.^  In  those 
cases  also,  where  a  motion  is  made  for  the  purpose  of  carrying  out 
one  of  the  standing  orders,  as,  for  example,  the  order  for  the  exclu- 
sion of  strangers,  the  proceeding  is  not  so  much  a  motion,  as  a 
suggestion  or  taking  notice  of  the  fact  that  a  breach  of  the  order 
exists,  and  neither  requires  to  be  seconded  nor  even  put  to  the 
question.  In  all  cases  of  this  description,  where  it  is  manifest  that 
a  breach  of  the  standing  orders  exists,  it  is  the  right  of  every  mem- 
ber to  have  them  enforced  without  delay  or  debate.^ 

1231.  When  a  motion  is  regularly  made  and  seconded,  or  when 
it  is  made  only,  where  seconding  is  not  required,  it  is  then  the  duty 
of  the  speaker  to  propose  it  as  a  question  for  the  determination  of 
the  house  ;  unless  the  motion  is  objectionable,  either  in  point  of 
substance  or  form,  or  in  reference  to  the  time  when  it  is  made.  If 
a  motion  is  objectionable  in  any  of  these  respects,  the  ^-regularity 
may  be  pointed  out  by  the  speaker,  or  taken  notice  of  by  him  of 
his  own  motion ;  and,  in  either  case,  being  stated  by  the  speaker  to 
the  mover  and  the  house,  the  mover  may  then  withdraw  his  mo- 
tion, or  modify  it  and  present  it  in  an  unobjectionable  form. 

»Hans.  (1),  VII.  188;  Same,  XXV.  1138,         «  May,  853;  Hatsell,  H.  120,  note. 
1140.    But  though  a  member  may  vote,  he  is         ^  Hatsell,  II.  120. 
not  with  us  allowed  to  speak  against  his  own 
motion.     Cong.  Globe,  XXI.  1094, 1095. 

42* 


498  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

1232.  If  the  mover,  however,  insists  upon  his  motion  as  it  is,  it 
must  be  stated  to  the  house  by  the  speaker.  It  then  belongs  to 
the  determination  of  the  house,  both  as  to  the  point  of  regularity 
and  as  to  the  -subject-matter;  though  it  is  nevertheless  competent 
for  the  speaker  or  any  other  member  to  take  the  sense  of  the  house 
upon  the  preliminary  question  of  regularity.  In  the  former  case, 
the  question  of  the  regularity  of  the  motion  is  involved  in  the  mo- 
tion itself,  and  decided  at  the  same  time ;  in  the  latter,  the  two 
questions  are  separately  presented.  The  irregularity  of  a  motion 
may  be  pointed  out  as  well  after  it  has  been  stated  to  the  house  by 
the  speaker  as  before ;  but  in  this  case,  it  is  no  longer  within  the 
power  of  the  mover  to  withdraw  or  modify  it,  but  it  must  be  deter- 
mined by  the  house  in  the  manner  already  described. 

1233.  When  a  motion  has  been  made  merely,  but  not  yet  pro- 
posed or  stated  by  the  speaker,  the  mover  may  withdraw,  or  modify 
it  at  his  pleasure.  This,  consequently,  is  the  time  at  which  objec- 
^ns  to  motions,  especially  in  point  of  form,  are  usually  made, 
either  by  the  speaker,  or  by  other  members ;  upon  which  the  mover 
may  either  explain  and  insist  upon  his  motion,  as  it  stands,  or  he 
may  withdraw  it  altogether;  or,  adopting  the  suggestions  for 
amendment,  may  modify  it  at  his  pleasure ;  and  this  power  of  the 
mover  may  be  exercised,  as  it  seems,  without  reference  to  his  sec- 
onder, if  the  motion  has  been  seconded ;  though,  of  course,  the 
seconder  may  withdraw  his  second,  if  he  does  not  approve  of  the 
motion  as  amended ;  or,  entirely  independent  of  the  mover,  if  he 
changes  his  mind  before  the  motion  is  stated  by  the  speaker. 

1234.  If  a  motion  is  unobjectionable,  or  not  objected  to,  on  any 
of  the  grounds  above  mentioned;  or,  having  been  objected  to  for 
some  irregularity  in  point  of  form,  has  been  put  into  the  proper 
form  by  the  mover ;  it  then  becomes  the  duty  of  the  speaker  to 
propose  it  to  the  house  for  its  determination.  In  general,  a  motion 
is  to  be  stated  in  the  words  in  which  it  is  moved,^  or  in  which  the 
house  has  agreed  that  it  shall  be  stated ;  but,  where  the  mover  has 
evidently  •nisapprehended  the  terms  in  which  his  motion  ought  to 
be  framed,  in  order  to  accomphsh  the  object  which  he  has  in  view, 
it  is  the  duty  of  the  speaker  to  state  it  in  the  appropriate  form. 
Thus,  where  a  motion  was  made,  that  a  resolution  which  had  been 
debated  and  rejected  by  a  great  majority,  should  not  be  entered  on 
the  minutes,  the  speaker  proposed  the  question  to  the  house,  "  that 
the  proceedings  should  be  expunged,"  for  the  reason,  that  as  the 

t  Pari.  Reg.  XXXIX.  218. 


Chap.  L]  wiTUDRAWyVL  of  motions.  499 

minutes  of  the  proceedings  were  going  on  during  the  debate,  and 
the  resolution  was  therefore  akeady  entered,  the  only  mode  of  ac- 
complishing the  o])ject  contemplated  by  the  motion  would  be  to 
expunge  the  entry  of  the  resolution.^  In  another  case,  two  mem- 
bers having  risen  to  address  the  house,  and  one  of  them  being 
called  upon  by  the  speaker,  a  motion  was  made  in  this  form,  that 
the  member  called  upon  by  the  speaker,  "  not  being  first  up,  do  now 
speak ; "  but  the  speaker  stated  the  question  thus,  that  the  other 
member,  "  being  first  up,  do  now  speak."  ^ 

1235.  When  a  motion  has  been  stated  by  the  speaker  to  the 
house,  and  proposed  as  a  question  for  its  determination,  it  is  then 
in  the  possession  of  the  house,  to  be  decided  or  otherwise  di^^posed 
of  according  to  the  established  forms  of  proceeding,  and  is  no 
longer  in  the  power  of  the  mover  to  withdraw  or  modify  without 
the  consent  of  the  house.  But  wiih  the  leave  of  the  house,  a  mo- 
tion may  be  withdrawn,  either  by  the  mover,  or  at  the  suggestion 
of  any  member  at  anytime  before  the  question  is  fully  put  upon  it, 
even  if  the  debate  has  been  adjourned.'^ 

1236.  In  order  that  a  motion  may  be  withdrawn  after  being 
stated,  the  unanimous  consent  of  the  house  must  be  given,  upon  a 
request  or  motion  made  for  that  purpose  by  the  mover  or  some 
other  member ;  though,  as  has  already  been  seen,  until  a  motion 
has  been  stated,  it  is  entirely  within  the  control  of  the  mover  to 
withdraw''  or  modify  at  his  pleasure. 

1237.  The  usual  form  of  proceeding  in  the  withdrawal  of  a 
motion  is  for  the  mover,  either  of  his  own  accord,  or  upon  the  sug- 
gestion of  the  speaker  or  some  other  member,  to  express  a  wish  to 
withdraw  his  motion ;  if  the  seconder  gives  his  consent,^  the  speaker 
then  puts  the  question,  that  the  motion  be  withdrawn  ;  and  if  there 
is  no  dissenting  voice,  the  motion  is  withdrawn  accordingly.  If 
any  one  member  dissents,  the  motion  cannot  be  withdrawn,  but 
must  be  decided  by  the  house.^  It  is  not  usual  to  put  the  question 
for  withdrawing  until  the  mover  and  seconder  have  given  their 
consent,  provided  they  are  present  to  do  so ;  but  if  they  happen  to 
be  al)sent  from  the  house  at  the  time,  so  that  their  consent  cannot 
be  obtained,  the  question  may  nevertheless  be  put,  and  the  motion 
withdrawn  by  the  consent  of  the  house.*^ 

1238.  If  any  other  motion,  as,  for  example,  the  previous  ques- 

1  Hans.  (3),  XVII.  1281,  1324.  •♦  Hans.  (3),  V.  1220. 

«  Cav.  Deb.  II.  386.  ^  Pari.  Reg.  LXIII.  282. 

»  Pari.    lie'-.    XXII.  631,   632;  Hans.  (1),         «  Pari.  Reg.  LXIX.  189, 190. 
XXXVII.  1072.  1079. 


500  LEGISLATIVE   ASSEMBLIES.  [PaRT  "VL 

tion,^  or  an  amendment,^  is  pending  at  the  time  in  reference  to  a 
motion  which  the  mover  desires  to  withdraw,  the  consent  of  the 
mover  and  seconder  of  such  second  motion  must  also  be  obtained, 
before  the  question  can  be  put  for  withdra^^^ng  the  first.  In  this 
case,  the  question  is  put,  in  fact,  upon  withdrawing  both  motions 
at  the  same  time,  and  will  of  course  be  negatived  by  the  dissent  of 
any  one  member,  who  wishes  to  decide  the  first  motion  either  by 
itself,  or  by  means  of  or  connected  with  the  second  motion ;  but, 
though  the  first  motion  cannot  be  \\dthdrawn  ^dthout  the  second, 
tlie  latter  may  be  withdrawn,  like  any  other  motion. 

1239.  After  a  motion  has  been  proposed  by  the  speaker,  and 
thus  put  into  the  possession  of  the  house,  the  mover  and  seconder 
have  no  more  control  over  it  than  any  other  member ;  nor  is  their 
presence  in  the  house,  any  more  necessary  for  considering  or  dis- 
posing of  it,  than  the  presence  of  other  members ;  and,  therefore, 
when  a  motion  has  been  regularly  stated,  the  fact  of  its  having  been 
moved  cannot  be  called  in  question,  merely  because  the  mover  is 
not  present,  at  the  moment,  and  cannot  avow  the  motion  to  be 
his.3 

1240.  When  a  motion  has  been  proposed  by  the  speaker,  it  is  no 
longer  in  the  power  of  the  mover  to  modify  it,  at  his  pleasure,  as 
he  may  do  before  it  has  been  stated ;  it  can  then  only  be  altered  by 
being  amended,  on  motion  and  vote,  in  the  usual  manner  ;  *  unless 
the  house  give  the  mover  leave  to  \^dthdraw  his  motion,  for  the 
purpose  of  offering  it  in  a  different  form  ;  '^  or  it  is  presumed,  unless 
he  should  be  allowed  to  modify  it  by  general  consent. 

1241.  It  is  deemed  so  essential  in  the  legislative  assemblies  of 
this  country,  that  the  mover  of  a  motion  should  possess  the  right 
of  withdrawing  it  at  pleasure,  that  it  is  generally  provided  by  a 
rule,  that  a  motion  after  it  is  in  possession  of  the  house  may  be 
withdrawn  by  the  mover  at  any  time  before  a  decision  or  amend- 
ment.'' The  mover  may  modify  his  motion  either  at  his  own  sug- 
gestion, or  by  adopting  a  modification  or  amendment  suggested 
by  another.  The  right  to  modify  is  a  consequence  of  the  right  to 
withdraw  and  may  be  exercised  whenever  the  latter  is  allowable,'^ 
except  when  the  previous  question  has  been  moved,  in  which  case, 


1  Hans.  (1),  XXXIV.  139.  «  This  is  the  rule  of  the  house  of  repre- 

»  Hans.  (2),  XI.  913,  915,  918.  sentatives  of  the  United  States.    The  rule  or 

*  Pari.  Reg.   XXIV.   76,  77;  Same,  XXV.  the  senate  provides  that  a  motion  may  be 
158,  159,  160.  withdrawn  at  any  time    before    a  decision, 

*  Pari.  Reg.  XVII.  107.  amendment,  or  ordering  of  the  yeas  and  nays. 
»  Pari.  Reg.  XXV.  303,  313,  827,  328.  '  J.  of  H.  30th  Cong.  1st  Sess.  196. 


Chap.  L]  withdrawal  of  motions.  501 

the  mover  of  the.  proposition  to  which  the  previous  question  applies, 
may  withdraw  his  motion  altogether,  but  is  not  at  liberty  to  modify 
it.i  All  cases,  not  coming  within  the  rule  of  the  particular  assem- 
bly, as  to  the  withdrawal  of  motions,  either  in  regard  to  times  or 
subjects,  are  governed  by  the  rules  above  stated. 

1242.  In  regard  to  petitions,  memorials,  and  papers  of  that  de- 
scription, all  motions  relating  to  them  stand,  in  this  respect,  upon  the 
footing  of  oilier  motions.  Bills  and  reports  and  similar  papers  so 
long  as  they  remain  in  the  forai  of  motions,  are  subject  to  the  like 
rales.  When,  however,  papers  of  this  and  the  former  description 
have  been  received  by  the  house  they  ,can  only  be  withdrawn  with 
its  consent  obtained  and  evidenced  in  the  usual  manner.^ 

1243.  Where  a  motion  is  withdrawn,  either  before  it  is  proposed 
as  a  question,  or  at  the  suggestion  of  the  mover,  or  by  the  leave  of 
the  assembly,  it  may  be  moved  again.^ 

1244.  When  the  paper,  on  which  a  motion  is  founded,  has  been 
received  from  the  other  branch,  or  is  reported  by  a  committee,  or 
has  passed  into  the  possession  of  the  assembly,  it  cannot  be  modi- 
fied ;  inasmuch  as  there  is  no  person  in  existence,  as  a  member  of 
the  assembly,  who  has  authority  to  suggest  or  accede  to  a  modi- 
fication.* 

1245.  The  mover  of  a  proposition  may  modify  it  so  as  essentially 
to  change  its  character  ;  in  which  case,  all  motions,  predicated  upon 
it  as  it  stood  originally  may  fall,  and  it  wUl  be  no  longer  objection- 
able on  the  ground,  that  the  judgment  of  the  assembly  has  been 
already  expressed  upon  it.^  A  modification  is  not  allowable,  where 
the  effect  of  it  would  be  to  introduce  a  new  instrument,  as,  for 
instance,  a  bill  or  joint  resolution,  contrary  to  the  rules  of  the 
assembly.*^ 

1246.  If  the  mover  withdraws  his  motion,  upon  a  compact  with 
some  other  member  to  renew  it,  the  presiding  officer  cannot  recog- 
nize or  enforce  any  such  compact ;  but  will  leave  it  entirely  to  the 
honor  and  opportunity  of  the  member  with  whom  the  compact  is 
made.'^ 

1247.  Under  the  rules  applicable  to  this  subject,  the  seconder  of 
a  motion  may,  it  seems,  withdraw  his  second.^ 

1  J.  ofH.  2Gth  Cong.  1st  Ses3.  1288;  Same,  *  Cong.   Globe,  XXI.   835;    Same,   XXIIL 

27th  Cong.  1st  Sess.  813;  Same,  31st  Cong.  139. 

1st  Sess.  1395;  Cong.  Globe,  XI.  471.  ^  Cong.  Globe,  XVIII.  179, 180. 

»  See  post,  ^  23:iii.  «  J.  of  H.  32d  Cons.  1st  Sess.  679. 

s  Cong.  Globe,  XVU.  273;  May,  R.  0.  &c.,  '  Cong.  Globe,  VIII.  173,  174;    Same,  XI 

131.  687,  916;  Same,  XVm.  48. 

«  Lloyd's  Deb.  II.  5. 


502  LEGISLATIVE  ASSEMBLIES.  [PaKT  VI. 

1248.  When  the  mover  of  a  proposition  has  a  right  to  withdraw 
it,  at  his  pleasure,  he  may  do  so  at  any  time  when  he  can  obtain 
the  floor  for  the  purpose,  whether  a  quorum  is  present  or  not ;  but 
when  a  motion  is  necessary  for  the  purpose,  this  can  only  be  made 
and  acted  upon,  when  a  quorum  is  present. 

1249.  After  a  motion  has  been  proposed,  it  is  regularly  to  remain 
upon  the  table  before  the  speaker ;  and,  whilst  under  consideration, 
it  is  the  right  of  every  member,  as  often  as  he  may  desire,  to  look 
at  it,  or  require  it  to  be  read,  for  information.^  But  no  member 
has  a  right  to  inspect  it  as  it  lies  on  the  table.  , 


CHAPTER    SECOND. 

OF  MOTIONS  CONSIDERED  WITH  REFERENCE  TO  THEIR 

SUBSTANCE. 

1250.  It  being  the  right  of  every  member  to  propose  any  motion 
he  may  think  proper,  for  the  consideration  of  the  house,^  unless 
restrained  by  some  express  prohibition,  or  by  considerations  of 
public  policy,  or  by  the  necessity  of  regularity  and  order  in  the  pro- 
ceedings, the  subject  of  this  chapter  will  be  most  conveniently 
treated  in  the  negative  form  by  showing  what  motions  are  objec- 
tionable. 

1251.  I.  Motions  in  contravention  of  a  statute  are  objectionable 
on  that  ground ;  although,  as  it  is  in  the  power  of  the  two  houses, 
to  repeal  the  act,  each  of  them  may  institute  proceedings  for  that 
purpose  ;  yet,  whilst  an  act  remains  unrepealed,  it  is  binding  on  the 
members  collectively  as  well  as  individually.  Thus,  a  motion 
made  in  the  house  of  commonSj  contravening  any  of  the  provisions 
of  the  several  acts  regulating  the  trial  of  controverted  elections, 
would  be  irregular.  For  a  similar  reason,  in  this  country  a  motion 
is  objectionable,  which  is  in  contravention  of  a  constitutional  pro- 
vision, or  of  an  act  of  the  legislature  made  in  conformity  there- 
■v^dth. 

1252.  II.  A  motion,  which  is  in  contravention  of  any  of  the 
standing  orders,  is  irregular,'^  for  the  reason,  that  it  violates  the  laws 

1  Romilly,  274;  Hatsel],  IL  112.  »  Pari.  Reg.  XI.  147,  485. 

2  Hans.  (3),  LXin.  1446. 


Chap.  II.]  motions  as  to  their  substance.  503 

which  the  assembly  has  imposed  on  itself  for  its  OAvn  government, 
and  for  ihe  regulation  of  its  proceedings  ;  and  although  it  can,  if  it 
sees  fit,  repeal  any  of  its  orders,  yet,  whilst  an  order  is  in  force,  it 
cannot  be  disregarded ;  and,  therefore,  no  member  is  at  liberty  to 
make  a  motion  repugnant  to  a  standing  order  of  the  house. 

1253.  III.  A  motion,  which  contravenes  a  particular  or  special 
order  of  the  house,  is  also  objectionable  for  the  same  reason; 
although  the  orders  of  the  house  may  be  rescinded  or  discharged, 
at  the  pleasure  of  the  house  at  any  time.  Thus,  if  the  house  order 
that  a  l)ill  be  read  a  second  time  on  a  particular  day,  a  motion  on 
some  other  day  that  it  be  then  read  a  second  time  would  be  irregu- 
lar, as  contravening  the  order  of  the  house  for  the  second  reading; 
but  the  house  might,  nevertheless,  discharge  or  rescind  the  order  for 
the  second  reading. 

1254.  IV.  It  is  a  rule,  introduced  in  order  to  avoid  contradictory 
decisions,  to  prevent  surprises,'  and  to  afford  opportunity  for  deter- 
mining questions  as  they  arise,  that  no  motion  shall  be  made  or 
question  proposed,  which  is  substantially  the  same  with  one  on 
which  the  judgment  of  the  house  has  already  been  expressed  during 
the  session,^  or  which  is  still  pending  in  the  house  or  before  a  com- 
mittee. 

1255.  K  the  motion  proposed  is  the  same  in  substance  with  that 
already  determined,  no  mere  alteration  of  the  language  will  be 
sutiicient  to  evade  this  rule.  Thus,  where  a  motion  was  made  for 
a  bill  to  relieve  dissenters  from  the  payment  of  church-rates,  the 

,  form  and  words  of  which  were  different  from  those  of  a  previous  mo- 
tion, but  the  object  of  which  was  the  same  in  substance,  and  the 
speaker  called  the  attention  of  the  house  to  the  point  of  order,  the 
house  agreed  that  the  motion  was  irregular,  and  ought  not  to  be 
proposed.'-  But  when  a  motion  for  leave  to  bring  in  a  bill  has  been 
rejected,  although  a  second  motion  of  the  same  substance  cannot  be 
entertained,  it  is  competent  to  move  for  a  committee  of  the  whole, 
or  a  select  committee,  to  consider  of  the  laws  to  which  the  rejected 
bill  referred  ;  and  this  is  an  expedient  often  resorted  to.-^  The  rule 
may  be  evaded  by  framing  the  new  motion,  with  such  differences 
as  to  form  and  matter,  as  to  be  beyond  the  restriction,  whUe  the 
purpose  in  view  is  susceptible  of  being  effected  under  it.  But  the 
rule  cannot  be  evaded  by  renewing,  in  the  form  of  an  amendment, 
a  motion  which  has  already  been  disposed  of.'* 

1  May,  233.  «  May,  234. 

»  May,  234;  Comm.  Jour.  XCV.  495.  *  Haus.  (3),  LXXVI.  1021;  May,  234. 


504  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

1256.  The  same  rule  applies,  where  the  motion  is  inconsistent 
and  interferes  with  a  vote  already  passed ;  as,  where  the  house 
having  voted  the  cavalry  for  three  months,  and  a  motion  was  made 
for  an  addi-ess  to  the  king,  entreating  him  to  consider  of  the  benefits 
that  would  residt  from  reducing  the  number  of  the  cavahy  now 
maintained,  jNIr.  Speaker  Addington  suggested,  that  the  motion 
was  improper  as  interfering  with  the  previous  vote,  and  the  house 
acquiesced  in  the  suggestion.^  So  where  a  committee  has  been 
appointed  for  the  consideration  of  a  particular  subject,  as,  for 
instance,  a  controverted  election,  a  motion  cannot  be  entertained 
by  the  house,  which  comprises  any  thing  that  may  be  inquired  into 
by  the  committee.^ 

1257.  So,  where  the  purpose  of  the  motion  is  to  call  upon  the 
house  to  rejudge  what  it  has  already  judged  dm-ing  the  session,  the 
motion  is  irregular  i^  as  where  a  witness  having  been  adjudged 
guilty  of  prevarication,  and  committed,  and  a  member  having  given 
notice  of  a  motion  on  the  subject,  and  addressing  the  house  in  sup- 
port of  the  motion,  with  which  he  intended  to  conclude,  contended 
that  prevarication  could  not  apply  to  the  evidence  given  by  the 
witness,  which  he  then  proceeded  to  examine,  the  member  was  not 
allowed  to  go  on,  on  the  ground,  that  the  purpose  of  his  motion 
being  to  call  upon  the  house  to  rejudge  a  question  abeady  decided, 
it  was  irregular.^ 

1258.  For  the  same  reason,  that  a  question,  which  has  been 
already  decided,  cannot  be  again  proposed,  it  is  irregular  to  renew 
a  motion,  which  has  been  decided  to  be  out  of  order,  and  therefore 
inadmissible.'^ 

1259.  But  the  rule  does  not  apply  to  the  different  stages  of  a 
bill;  the  same  proposition  which  has  already  been  rejected  in  a 
prior  stage,  may  be  again  moved  in  another. 

1260.  But,  though  a  motion  is  irregular,  which  proposes  a  ques- 
tion already  decided,  it  is  nevertheless  competent  for  the  house  to 
rescind  a  vote.  This  is  allowed,  in  order  that  the  discretion  of  par- 
liament may  not  be  too  strictly  confined,  and  its  votes  subject  to 

1  Pari.  Reg.  LVIII.  326.  turn  of  the  debate;  and  it  is  probable,  that  in 
*  Hans.  (2),  XVI.  1186.  the  proceeding  referred  to,  the  house  permit- 
3  An  instance  is  recorded  in  the  Commons  ted  the  order  to  be  spoken  against,  that  the 
Journal,  in  the  19th  Charles  IL  of  leave  being  debate  might  be  followed  by  a  question  to 
given  to  speak  against  an  order  of  the  day  rescind  or  discharge  the  order.  In  modem 
previous,  which  was  followed  by  a  discharge  times,  the  same  object  would  be  reached  by 
ofthe  order  in  question,  and  the  making  of  a  a  direct  motion  to  rescind  in  the  first  in- 
new  one  on  the  same  subject.  Coram.  Jour.  stance. 
IX.  20.  At  this  time,  it  was  customary  for  *  Hans.  (1),  XIV.  113. 
the  speaker  to  frame  the  question  from  the  *  Pari.  Reg.  LVIII.  326. 


Chap.  IL]  motions  as  to  their  substance.  505 

irrevocable  error.  In  point  of  form,  the  rescinding  of  a  vote  is  the 
matter  of  a  new  question  ;  the  form  being  to  read  the  resolution  of 
the  house,  and  then  to  move  that  it  be  rescinded ;  and,  thus  the 
same  question,  which  has  been  already  resolved,  is  not  again 
offered,  although  its  effect  is  annulled.^ 

1261.  When  the  resolution  or  vote  stands  in  the  form  of  an 
affirmative  proposition,  a  motion  to  rescind  it  may  be  framed  with- 
out difficulty ;  but,  where  it  is  in  the  negative,  it  may  be  difficult, 
in  some  cases,  to  frame  a  question  for  the  purpose,  without  pre- 
senting the  same  question  a  second  time.  In  such  a  case,  the  only 
mode  by  wliich  a  negative  vote  can  be  revoked,  is  by  proposing 
another  question  similar  in  its  general  pm-port  to  that  which  has 
been  rejected,  but  with  sufficient  variance  to  constitute  a  new  ques- 
tion ;  leaving  it  to  the  house  to  determine  whether  it  is  or  not 
the  same  question.^ 

1262.  It  seems  to  be  immaterial,  whether  the  motion,  upon 
which  the  decision  of  the  house  has  already  taken  place,  is  the 
same  which  is  newly  moved,  or  only  an  equivalent  motion.^ 

1263.  No  order  can  be  made  in  reference  to  a  subject,  which  is 
not  regularly  before  the  assembly  ;  ^  and,  therefore,  where  a  member 
read  a  series  of  resolutions,  and  then  moved  that  they  should  be 
printed,  Mr.  Speaker  Addington  said,  that,  as  the  resolutions  had 
not  been  regularly  moved,  no  order  could  take  place  with  respect 
to  them.'' 

1264.  The  inconvenience,  sometimes  resulting  from  the  practical 
application  of  the  rule  above  stated,  has  led  to  the  introduction  into 
the  parliamentary  practice  of  this  -country  of  the  motion  for  recon- 
sideration;  ^  V7\nc\i^  ^hile,  it  recognizes  and  upholds  the  rule  in  its 
ancient  strictness,  yet  allows  a  deliberative  assembly,  for  sufficient 
reasons,  to  relieve  itself  from  the  embarrassment,  which  might 
attend  the  strict  enforcement  of  the  rule  in  a  particular  case  ;  so  that 

1  May,  233.  ceedings  of  the  house  of  commons  is  con- 

*.  May,  234.  tnined  in  the  ninth  volume  of  the  journals  of 

'  Halsell,  II.  116.    As  to  equivalent  ques-  that  body,  and  inserted  iu  the  note  to  para- 

tions,  see  post,  §  1830.  graph  1257.    Neither  does  it  depend   for  its 

*  J.  of  H.  17th  Cong.  1st  Sess.  290;  Reg.  of  existence  on  the  rules  and  orders  of  any  as- 
Deb.  III.  1142;  Cong.  Globe,  III.  261;  Same,  sembly  in  which  it  prevails,  though  it  is  com- 
VIII.  161;  Same,  XYHI.  799,  867;  Same,  monly  regulated  by  them.  It  appears  to  have 
XXI.  1431.  been  in  frequent  use   in  the  congress  of  the 

*  Piu-I.  Reg.  XLIV.  108,  113.  confederation,  though  it  is  not  mentioned  iu 

*  This  motion,  though  parliamentary  in  its  the  rules  and  orders  of  that  body;  and  it  was 
character,  U  entirely  American  in  its  origin,  in  common  use  in  the  house  of  representatives 
and  one  'jf  the  few  motions  known  only  in  of  the  United  States  before  any  rules  ou  that 
our  legislative   assemblies.     The  nearest  ap-  subject  were  adopted 

proidmation  to  it  that  I  can  find  in  the  pro- 

43 


506  LEGISLATIVE  ASSEMBLIES.  [PaRT   VL 

it  has  now  come  to  be  a  common  practice  in  all  om*  legislative  and 
other  deliberative  assemblies,  and  may  consequently  be  regarded  as 
a  principle  of  the  common  parliamentary  law  of  this  country,  to 
reconsider  a  vote  already  passed,  whether  affirmatively  or  nega- 
tively. 

1265.  For  this  purpose  a  motion  is  made  and  seconded,  in  the 
usual  manner,  that  such  a  vote  be  reconsidered,  that  is,  that  the 
subject  of  it  be  again  considered  by  the  assembly;  and  if  this 
motion  prevails,  the  effect  of  the  vote  in  question  is  abrogated,  and 
the  matter  stands  before  the  assembly  in  precisely  the  same  state 
and  condition,  and  upon  the  same  question,  as  if  the  vote,  which 
has  been  ordered  to  be  reconsidered,  had  never  been  passed.  Thus, 
if  an  amendment  by  inserting  words  is  moved  and  rejected,  the 
same  amendment  cannot  be  moved  again,  but  the  assembly  may, 
on  motion,  reconsider  the  vote  by  which  it  was  rejected,  and  then 
the  question  recurs  on  the  amendment,  precisely  as  if  the  vote  had 
never  been  taken  upon  it. 

1266.  It  is  usual  in  our  legislative  bodies,  and  in  other  deliber- 
ative assemblies  of  a  permanent  character,  to  regulate  by  a  special 
rule  the  time,  manner,  and  by  whom,  a  motion  to  reconsider  may  be 
made ;  as,  for  example,  that  it  shall  be  made  only  on  the  same  or  a 
succeeding  day,  or  within  a  given  number  of  days ;  by  a  member 
who  voted  with  the  majority;  or  at  a  time  when  there  are  as 
many  members  present  as  there  were  when  the  vote  was  passed ; 
but,  where  there  is  no  special  rule  on  the  subject,  a  motion  to  re- 
consider may  be  made  at  any  time,  or  by  any  member,  precisely 
like  any  other  motion,  and  subject  to  no  other  rules. 

1267.  If  the  time  is  fixed  in  which  a  motion  to  reconsider  must 
be  made,  and  it  is  made  accordingly,  but  the  consideration  of  it  is 
postponed  to  a  subsequent  day,  at  which  time  it  is  withdrawn  by 
the  mover,  it  is  then  too  late  to  renew  the  motion.^  The  same  re- 
sult follows  if,  when  a  vote  has  been  taken  and  declared  in  the 
affirmative  or  negative,  it  is  afterwards  ascertained  upon  a  recount 
or  otherwise,  that  the  vote  was  incorrectly  declared,  and  in  fact 
passed  the  other  way.^ 

1268.  It  is  commonly  provided  also  by  the  rule  relating  to  this 
subject,  that  the  motion  to  reconsider  shall  only  be  made  by  one 
who  voted  with  the  majority  on  the  question  to  be  reconsidered. 
If  a  member's   right  to  make  the  motion  is  questioned  on  this 


1  J.  of  H.  27th  Cong,  2d  Sess.  1118,  1122;         «  Cong.  Globe,  XXIIL  296;  J.  of  H.  30th 
Cong.  Globe,  XV.  856.  Cong.  1st  Sess.  1080. 


Chap.  II.]  motions  as  to  tueir  substance.  507 

ground,  the  fact  is  to  be  ascertained  by  an  inquiry  of  the  member 
himself  how  he  voted ;  and  if  before  the  motion  has  been  decided, 
it  is  discovered  that  the  mover  had  no  right  to  make  it,  even 
though  the  time  for  such  a  motion  has  elapsed,  all  the  proceedings 
with  reference  to  it  wiU  be  null.  When  no  division  of  the  house 
take?  place,  all  the  members  present '  are  deemed  to  have  voted 
with  the  majority,  and  may  accordingly  move  a  reconsideration.^ 

1269.  The  term  majority  means  the  prevailing  party  ;  and  there- 
fore when  a  question  is  lost  by  a  tie  vote,  those  who  vote  in  the 
negative  are  alone  entitled  to  move  a  reconsideration.'^ 

1270.  The  motion  to  reconsider,  though  relating  to  the  same 
subject  already  considered,  is,  in  a  parliamentary  sense,  a  new  one, 
distiiidct  both  from  a  motion  to  rescind  the  former  vote,  and  from 
the  subject  of  it. 

1271.  The  first  effect  of  this  principle  is,  that  the  motion  to  re- 
consider is  to  be  decided  by  the  votes  of  a  majority  in  the  ordinary 
manner,  though  a  different  rule,  requiring  more  or  permitting  less 
than  a  majority,  is  established  for  the  decision  of  the  question  which 
it  is  proposed  to  reconsider.* 

1272.  The  second  effect  of  this  principle  is  that  the  motion  to 
reconsider  is  debatable,  although  the  question  which  it  is  proposed 
to  reconsider  is  not.''  In  the  debate  on  the  motion  to  reconsider, 
the  merits  of  the  principal  question  are  usually  brought  forward 
and  discussed,  though  it  is  plain  that  they  are  not  involved,  and 
that  the  question  is  whether  the  principal  subject  shall  be  again 
considered. 

1273.  The  tliird  effect  of  this  principle  is,  that  when  one  mo- 
tion to  reconsider  has  been  made  and  decided,  either  in  the  affirm- 
ative or  negative,  or  is  stiU  pending,^  no  other  motion  to  reconsidei 


1  J.  of  H.  29th  Cong.  1st  Sess.  1049,  1050 ;  United  States,  that  such  a  motion  could  not 

Reg.  of  Deb.  XV.  Part  2, 1515;  Cong.  Globe,  be  debated,  etc.    Cong.  Globe,  VL  145;  Same, 

XVIII.  400.  XX.  463;  Same,  XXI.  831. 

«Reg.   of  Deb.    XI.    Part  2,   1393;    Cong.  »  J.  of  H.  27th  Cong.  1st  Sess.  618,  619,  620; 

Globe,  VIII.  359;  Same,  XI.  242,  452.  Same,  31st  Cong.  1st  Sess.  1397.     It  is  an  ex- 

*  J.  of  H.  26th  Cong.  1st  Sess.  211 ;  Same,  pedieut  often  resorted  to  in  the  house  of  rep- 
80th  Cong.  1st  Sess.  1081.  resentatives  in  the  congress  of  the    United 

*  J.  of  S.  V.  92 ;  .1.  of  H.  19th  Cong.  1st  States,  when  it  is  desired  to  put  a  measure 
Sess.  796;  Same,  SOth  Cong.  1st  Sess.  405.  vyliich  has  passed  out  of  the  reach  of  danger, 
But  see  Cong.  Globe,  XX.  199.  for  the  friends  of  it  to  move  a  reconsidera- 

*  In  view  of  the  inconvenience  that  would  tion,  and  then  to  pass  an  order,  that  that  mo- 
be  likely  to  result  from  allowing  debate  on  a  tion  lie  on  the  table.  The  bill  or  other  meas- 
motion  to  reconsider  a  question  which  was  ure  does  not  cohere  to  the  motion  for  recon- 
not  debatable,  it  has  been  several  times  de-  sideration  so  as  to  lie  on  the  table  with  it,  but 
oided  in  the  house  of  representatives  of  the  passes  along  through  its  regular  stages  as  if 


508  LEGISLATIVE    ASSEMBLIES.  [PaRT  VI. 

the  same  question  is  admissible ;  but  if  the  question  since  its  first 
reconsideration  has  been  so  altered  by  amendments,  as  to  be  no 
longer  the  same,  it  may  again  be  reconsidered.^ 

1274.  The  fourth  effect  of  this  principle  is,  that  though  a  mo- 
tion for  reconsideration  may  be  made  and  discussed  in  the  absence 
of  the  paper  to  which  it  relates ;  ^  yet  if  decided  in  the  affirma- 
tive, it  will  be  wholly  ineffectual  and  inoperative  until  the  paper  in 
question  is  in  possession  of  the  house.  The  first  step,  therefore, 
after  a  vote  to  reconsider  is  to  send  to  the  other  branch,  or  to  the 
executive,  for  the  paper  in  reference  to  which  the  vote  to  reconsider 
passes,  or  otherwise  to  bring  it  before  the  house.  Possession  of 
the  paper  may  also  be  obtained  before  the  motion  to  reconsider  is 
made.  In  either  case,  the  motion  for  the  paper  is  incidental  to  the 
motion  to  reconsider.^ 

1275.  It  is  a  general  principle  with  regard  to  reconsideration, 
that  at  a  subsequent  stage  there  can  be  no  reconsideration  of  a 
preceding  vote  in  relation  to  the  same  subject,  without  first  voting 
to  reconsider  such  subsequent  vote  ;  '^  thus,  after  a  bill  has  been 
read  a  thhd  time  and  passed,  it  is  then  too  late  for  a  motion  to  re- 
consider the  vote  ordering  it  to  a  second  reading,  or  rejecting  an 
amendment  proposed  at  that  stage,  unless  the  second  reading  of 
the  bill  is  first  reached  by  reconsidering  the  preceding  votes. 

1276.  It  is  a  general  principle,  also,  with  regard  to  this  matter, 
that  there  can  be  no  reconsideration  of  an  order,  the  execution  of 
which  has  already  commenced,  as,  for  example,  the  previous  ques- 
tion, whUe  the  main  question  is  being  taken,-^  though  such  order 
may  be  rescinded  or  discharged,  if  the  nature  thereof  will  admit  of 
such  a  motion,  as  to  so  much  of  the  same  as  remams  unexecuted. 
Nor  can  a  reconsideration  take  place  in  a  committee  ;  ^  or  in  com- 
mittee of  the  whole  ; ''  or  of  an  order  of  a  preceding  legislature.^ 

1277.  When  a  motion  to  reconsider  is  decided  in  the  affirmative, 


that  motion  had  not  been  made.    The  effect  Cong.  1st  Sess.  657;  J.  of  S.  30th  Cong.  2(1 

of  this  proceeding  is,  that  no  second  motion  to  Sess.  137,  173,  291;   Cong.  Globe,  VIII.  424; 

reconsider  can  be  made,  and  the  first  cannot  Same,  XI.  242  ;  Same,  XII.  244. 

be  got  at;  it  cannot  be  taken  up  out  of  its  ^  J.  of  H.  80th  Cong.  1st  Sess.  704. 

order  in  which  it  is  not  liliely  to  be  reached  *  .J.  of  H.  31st  Cong.  1st  Sess.  860,  861 ;  Reg. 

during  the  session,  without  a  vote  of  two  ofDeb.  I.  Part  1,786;  Same,  III.  28;  Cong. 

thirds.  Globe,  VIII.  231 ;  Same,  XXIII.  287. 

1  J.  of  H.  27th  Cong.  2d  Sess.  1022;  Cong.  ^  j.  of  H.  31st  Cong.  1st  Sess.  101. 
Globe,  XIII.  741;  Same,  XXI.  1372,  1373;  J.  «  Cong.  Globe,  VIII.  419,  420. 

of  H.  31st  Cong.  1st  Sess.  1397;  Cong.  Globe,  "  Cong.  Globe,  IX.  203;  Same,  X.  59;  but 

XXI.  1771.  see  Same,  VI.  423. 

2  J.  of  H.  26th  Cong.  1st  Sess.  1033;   Same,  »  Reg.  of  Deb.  IV.  Part  2,  2766. 
Wth  Cong,  lit  Sess.  1125, 1131 ;  Same,  29th 


Chap.  III.]  motions  as  to  their  form.  509 

the  question  or  business  to  which  it  is  attached,  immediately  takes 
the  place  to  which  it  belongs  in  the  general  order  of  business  in  the 
assembly/  or  goes  over  to  the  next  day  on  which  business  of  the 
same  description  is  in  order.^ 

1278.  When  a  motion  to  reconsider  prevails,  it  has  a  twofold 
effect ;  first,  it  entirely  abrogates  the  vote  passed  on  the  question, 
which  is  thereby  ordered  to  be  reconsidered ; '^  and,  secondly,  it 
again  brings  forward  that  question,  to  be  discussed  and  decided  in 
the  same  manner  it  was  originally,  for  the  consideration  and  de- 
termination of  the  assembly.^ 


CHAPTER  THIRD. 

OF  MOTIONS   CONSIDERED   WITH  REFERENCE  TO   THEIR  FORM. 

1279.  A  motion  is  a  proposition  made  to  the  house  by  a  mem- 
ber, which  if  adopted  becomes  the  resolution,  vote,  or  order,  of  the 
house.  The  form  of  a.  motion  must  consequently  be  so  framed, 
and  its  language  so  expressed,  that,  if  it  meets  the  approbation  of 
the  house,  it  may  at  once  become  the  resolution,  vote,  or  order 
which  it  purports  to  be.  In  considering  motions  in  reference  to 
their  form,  it  will  be  most  convenient  to  treat  of  the  subject  affirm- 
atively, by  pointing  out  the  several  requisites  as  to  form,  which  a 
motion  ought  regularly  to  possess. 

1280.  I.  Motions  are  usually  expressed  in  the  affirmative,  even 
where  then-  purpose  and  effect  are  negative,  although  there  is  no 
strict  rule  which  prohibits  them  from  being  put  in  the  negative  form. 
Thus,  for  example,  the  form  of  the  previous  question  is,  that  the 
main  question  be  now  pvt^  which  is  an  affirmative  proposition,  though 
in  parliament,  the  purpose  of  the  mover  is  to  obtain  a  decision  of 
it  in  the  negative,  and  the  motion  is  said  to  be  carried,  when,  in 
point  of  form,  it  has  been  rejected.  So,  where  the  purpose  of  a 
motion  is  the  rejection  of  words  from  another  motion  or  question, 
the  parliamentary  form  in  which  it  is  proposed  to  the  house  is,  that 

«  Cong.  Globe,  XX.  463.  '  WUMngion  v.  Harvard,  Cushing's  Reports, 

«  J.  of  H.  27th  Cong.  Ist  Sess.  618,  619,  620.      VIII.  66. 

♦  Cong.  Globe,  VHI.  410;  Same,  XXI.  882. 

43* 


510  LEGISLATIVE  ASSEMBLIES.  [PaRT   VL 

those  words  stand  part  of  the  question,  which  is  an  affirmative 
proposition. 

1281.  But  though  motions  are  not  usually  expressed  in  the  nega- 
tive, yet,  when  expressed  affirmatively,  and  decided  by  the  house  in 
the  negative,  such  negative  decision  is  as  much  the  judgment  or 
decision  of  the  house,  as  an  affirmative  decision  would  have  been,^ 
and  so,  it  is  presumed,  that  if  a  motion  was  allowed  to  be  put  in 
the  negative  form,  and  it  should  be  decided  negatively,  the  decision 
of  the  house  would  be  considered  as  affirming  the  proposition. 

1282.  In  the  house  of  commons,  where,  in  case  of  an  equality 
of  votes,  the  speaker  gives  the  casting  vote,  there  seems  to  be  no 
other  difference  between  putting  a  question  negatively  and  affirma- 
tively, than  what  results  from  the  greater  simplicity  and  regularity 
of  the  latter  form.  But,  in  the  house  of  lords,  in  which  the  lord 
chancellor  gives  his  vote  with  the  other  peers,  and  has  no  casting 
vote,  and  in  which,  in  case  of  an  equality  of  voices,  the  decision  of 
the  house  is  in  the  negative  of  the  proposition  submitted  to  it,  a  ques- 
tion, upon  which  the  house  is  equally  divided,  wiU  receive  a  decision 
the  one  way  or  the  Other,  according  as  it  is  proposed  in  the  affirma- 
tive or  the  negative.  Thus,  if  the  motion  is  proposed  in  the 
affirmative,  and  the  house  is  equally  divided,  the  decision  is  in 
the  negative  ;  but  if  the  motion  was  proposed  in  the  negative,  and 
the  same  members  should  vote  precisely  in  the  same  manner,  and 
divide  equally,  the  decision  would  be  in  the  affirmative.  In  some 
of  the  American  legislative  assemblies,  questions  are  frequently 
determined  by  an  equality  of  voices. 

1283.  II.  A  motion  must  regularly  be  in  writing.  It  is  usually 
prepared  beforehand,  or  written  on  the  spot,  by  the  member  by 
whom  it  is  proposed.  If  a  member,  however,  who  has  occasion  to 
make  a  motion,  has  not  prepared  it  beforehand,  and  insists  upon  his 
privilege,  he  may  dictate  the  words  of  his  motion  to  the  clerk,  and 
have  them  WTitten  down  by  him.  But  it  is  not  usual  for  members 
to  receive  the  assistance  of  the  clerk  in  this  manner,  unless  they  are 
laboring  under  some  infirmity,  which  prevents  them  from  writing 
their  motions  for  themselves.''^  In  this  country  it  is  usual  to  provide 
by  a  rule,  either  that  all  motions  shall  be  submitted  in  writing,  or 
that  they  shall  be  reduced  to  writing  if  demanded  by  the  presiding 
officer  or  any  member  of  the  assembly.     The  latter  is  the  form  of 

1  On  the  2fl  of  April,  1604,  it  was  laid  down,  tive,  cannot  be  questioned  a<:;nin,  but  must 

as  a  rule  in  the  house  of  commons  (Comm.  stand  as  a  judgment  of  the  house." 

Jour.  1.162,)  "  That  a  question  being  once  2  Romilly,  273;    Grey,  III.  836;  Pari.  Reg. 

made,  and  can-ied  in  the  affirmative  or  nega-  LXVI.  437;  Hans.  (1),  XXII.  745,  746. 


Chap.  III.]  motions  as  to  their  form.  511 

the  rale  in  both  houses  of  congress.^  It  is  not  usual,  however,  for 
the  speaker  to  require  those  motions  to  be  presented  in  writing, 
which  are  made  for  the  purpose  of  disposing  of  other  motions  and 
questions,  or  which  are  made  in  the  ordinary  course  of  proceeding, 
such,  for  example,  as  motions  to  adjourn  the  house  or  the  debate, 
for  the  previous  question,  or  for  reading  the  orders  of  the  day. 

1284.  III.  Every  motion  being  an  independent  proposition,  or  a 
series  of  propositions  relating  to  the  same  subject,  it  is  a  rule,  that 
a  member  cannot  make  two  or  more  separate  motions  at  the  same 
time.2  It  therefore  seems  irregular  and  unparliamentary  to  make 
what  is  ordinarily  the  matter  of  two  motions  the  subject  of  one ; 
yet  this  has  been  allowed  in  the  house  of  representatives  of  the 
United  States,  even  in  cases  in  which  one  of  the  motions  is  not 
debatable,^  or  where  one  requires  only  a  majority  of  votes  for  its 
determination,  and  the  other  a  vote  of  two  thirds,-*  and  two  ques- 
tions must  accordingly  be  taken  on  the  proposition.  In  that  body, 
also,  nothing  is  more  common  than  for  the  motion  to  reconsider, 
accompanied  by  a  motion  that  that  motion  lie  on  the  table,  to  be 
submitted  at  the  same  time.  Another  more  unparliamentary  pro- 
ceeding, which  is  allowed  in  that  assembly,  is,  for  a  proposition  and 
the  previous  question  upon  it,  to  be  both  moved  at  the  same 
time.^ 

1285.  Where  a  member  proposes  a  series  of  propositions  relating 
to  the  same  subject,  that  is  to  say,  a  string  of  resolutions,  he  fii'st 
reads,  and,  if  necessary,  explains  the  whole  series,  and  then  moves 
the  first.  In  this  mode  of  proceeding,  the  first  resolution  tests  the 
sense  of  the  house ;  if  adopted,  the  others  follow  as  a  matter  of 
course ;  if  rejected,  there  is  no  occasion  to  move  them  at  all.^ 

1286.  In  general,  it  is  ti-ue,  that  inconsistent  propositions  cannot 
be  blended  together  for  any  serious  purpose,  and  a  motion  would 
be  objectionable  in  point  of  form,  which  should  attempt  to  do 
so;  yet  the  practice  of  couphng  two  heterogeneous  propositions 
together,  by  means  of  an  amendment,  for  the  purpose  of  fixing 

1  This  rule  is  complied  with  if  a  printed  mo-  tained  by  the  house  on  the  grounds  of  con- 

tion,  or  one  partly  in  print  is  submitted.    See  venience  and  precedent.    J  of  H.  25th  Cong. 

Reg.  of  Deb.  VI.  Part  2,  1421.  2d  Sess.  1303;    Same,  26th  Cong.  1st  Ses8. 

3  Hans.  (3),  XX.  43C;    J.  of  H.  26th  Cong.  1033;  Same,  27th  Cong.  1st  Sess.  558;  Same, 

2d  Sess.  483;  Cong.  Globe,  XVIII.  1007.  30th  Cong.  1st  Sess.  326;  Cong.  Globe,  VI. 

»  Cong.  Globe,  XV.  124, 125 ;  Same,  XVIII.  505;  Same,  VIII.  282,  283,  432,  436;    Same, 

86.  494;    Same,   X.  154;    Same,   XI.   33;  Same, 

♦Cong.    Globe,  XV.  124,  125;  Same,  407,  XII.  123;    Same,  XIII.   324,  .3e38;  Same,  XV. 

408;  Same,  1164,  1165:  Same,  XVEI.  35.  84,  192,  237,  238;  Same,  XVIII.  179, 180 

»  The  propriety  of  this  proceeding  has  often  «  Hans.  (3),  XX.  436;  Romilh",  277. 
been  called  iu  question,  but  has    :  ?en  sus- 


512  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

absurdity  on  the  whole,  is  often  permitted  to  take  place  as  a  method 
of  taldng  the  sense  of  the  house  on  a  particular  question.^ 

1287.  IV.  A  motion  should  not  be  so  long  and  so  minute  in 
what  it  requires,  as  to  render  its  adoption  contrary  to  the  usual  cus- 
tom of  the  house ;  -  nor  should  it  be  argumentative  and  more  in 
the  style  of  a  speech  than  of  a  motion ;  ^  nor  should  it  contain  any 
unnecessary  provisions,*  or  objectionable  words,^  or  be  itself  unnec- 
essary ;  ^  nor  be  moved  for  the  purpose  merely  of  throwing  ridicule 
or  contempt  upon  some  other  motion.''  So  a  motion  is  objection- 
able, which  proposes  something  to  be  done,  contrary  to  the  orders 
of  the  house,  as  where  a  motion  was  made  to  bring  up  a  petition 
praying  for  pubUc  money,  which  had  not  been  recommended  by 
the  sovereign ;®  or  where  a  motion  was  made  to  bring  up  a  petition, 
which  had  erasures  on  it  not  made  with  the  knowledge  of  the 
petitioners.^ 

1288.  If  the  language  of  a  motion  is  offensive  either  to  the 
house,  or  to  any  member,  the  same  proceedings  may  be  had  in 
relation  to  it,  as  are  proper  in  the  case  of  disorderly  or  offensive 
words  used  in  debate ;  ^^  and,  for  the.  same  cause,  a  motion  may 
either  be  refused  an  entry  among  the  minutes,  or  if  already  entered, 
may  be  expunged.^^ 

1289.  In  all  these  cases,  the  speaker  calls  the  attention  of  the 
mover  and  of  the  house  to  the  irregularity  of  the  motion  before 
stating  it ;  whereupon  the  motion  is  usually  withdrawn  or  so  modi- 
fied as  to  be  no  longer  objectionable.  But  if  the  motion  is  of 
such  a  nature,  that  the  objection  cannot  be  removed,  as  in  the 
two  last-mentioned  cases  in  paragraph  1233,  the  speaker  refuses 
to  receive  or  put  the  motion  to  the  house,  but  treats  it  as  a 
nullity. 

1290.  If  a  motion  is  not  objectionable,  in  any  of  these  respects, 
.or  if  it  is  objected  to,  and  the  objection  is  not  sustained  by  the 

house,  it  is  the  right  of  the  mover  to  have  his  motion  proposed  in 
the  very  words,  in  which  it  is  made  ;  ^^  and  Lord  Thurlow  said 
he  should  consider  any  decision  false,  that  was  come  to  upon  a 
question,  the  words  of  which  had  been  altered  from  the  original 
motion  given  in  by  the  mover.^^ 

1  Pari.  Reg.  (2),  XVII.  199.  «  Pari.  Reg.  (2),  VH.  261,  262. 

>  Pari.  Reg.  LVIII.  194,  195.  »  Hans.  (3),  V.  1267,  1268. 

8  Hans.  (3),  XVH.  1281,  1824.  "  Pari.  Reg.  XXXIX.  218. 

*  Hans.  (3),  XXV.  436.  "  Hans.  (3),  XVIL  1281, 1324. 
6  Hans.  (1),  VIL  872.  «  Pari.  Reg.  XXXIX.  216. 

•  Pari.  Reg.  LVIII.  194,  195.  w  Pari.  Eei?.  XXXIX.  218. 
THans.   (3),  LIIL    1391,   1392.      See    also 

Cong.  Globe.  XIV.  36. 


CiiAP.  I  V.J         MOTIONS  AS  TO   THE   TIME   WHEN  MADE.  515 


CHAPTER    FOURTH. 

OF  MOTIONS   CONSIDERED  WITH  REFERENCE  TO  THE  TIME 
WHEN   THEY  ARE   MADE. 

1291.  It  being  contrary  to  the  course  of  the  house,  that  any  busi- 
ness should  be  laid  aside,  untO  it  is  determined  by  a  question;^  it 
is  a  rule,  that,  when  a  motion  has  been  made,  seconded,  and  pro- 
posed by  the  presiding  officer,  no  other  motion  for  the  introduction 
of  any  new  business  can  be  regularly  made,  until  the  former  has 
been  decided  by  a  question,  or  otherwise  disposed  of,  according  to 
the  forms  of  the  assembly ;  ^  and,  consequently,  a  motion,  which, 
in  all  other  respects,  is  perfectly  regular,  may  be  objectionable 
if  made  during  the  pendency  of  another  motion.  This  rule  is 
applicable  to  subsidiary  or  secondary,'^  as  well  as  to  principal, 
motions. 

1292.  This  rule  is  subject  to  several  exceptions :  first,  in  refer- 
ence to  all  those  motions,  which,  having  for  their  object  to  dispose 
of  a  principal  motion,  such,  for  example,  as  a  motion  to  amend,  or 
commit,  or  for  the  previous  question,  must  necessarily  be  put  and 
decided  before  the  question  is  taken  on  the  first  motion,  unless  they 
do  not  have  the  effect  to  supersede  that  motion  altogether,  in 
which  case  it  is  disposed  of  without  their  being  first  put  to  the 
question. 

1293.  A  second  class  of  exceptions  consists  of  those  motions 
which,  though  not  made  use  of  to  dispose  of  the  principal  motion, 
arise  out  of  and  are  incidental  to  that  or  other  questions  connected 
with  it ;  as,  for  example,  questions  relating  to  order,  motions  for  the 
reading  of  papers,  for  leave  to  withdraw  a  motion,  etc. ;  which  are 
of  course  to  be  put  and  decided  before  the  questions  which  give 
rise  to  them. 

1294.  To  the  same  class  belong  also  those  motions,  which  are 

»  Scobell,  29.  794;  Reg.  of  Deb.  III.  1099;  Same,  ^^^.  950; 

»  Hans.  (1),  I.  1002,  1022,  1025;    Romilly,  Same,  X.  Parti.  1388;    Cong.  Globe.  VI.  314, 

276;  Scobell,  21,  22;  Hatsell,  11.  128;  Comm.  Same,  X.  264,  405;  Same,  XVm.  93;  Same, 

Deb.  X.  293;  Hans.  (1),  IV.  186,  190;  Same,  XX.  492,  493. 

XXnr.  284;  Same,  (3),  LXn.  1068;  Pari.  Reg.  »  For  a  defiuition   of  these    motions,  see 

XXIV.  76,  77;    Same,  XXV.  158,  159,  160;  post,  §  1443. 
J.  of  H.  VII.  234;  Same,  lOth  Cong.  1st  Sess. 


514  LEGISLATIVE  ASSEMBLIES.  [PaRT   VI. 

incidental  to  the  course  of  business,  as  motions  to  adjourn,  or  to 
adjourn  during  pleasure,  or  that  a  particular  member  be  allowed  to 
address  the  house  without  rising,  or  in  reference  to  some  matter 
suddenly  arising  and  requiring  instant  determination. 

1295.  A  third  class  of  exceptions  to  the  rule  above  stated  con- 
sists of  what  are  called  questions  of  privilege,  or  those  which  con- 
cern the  rights  and  privileges  of  the  house  itself,  or  of  its  individual 
members ;  as,  for  example,  when  the  proceedings  are  disturbed  or 
inten-upted,  whether  by  strangers  or  members  within  the  house,  or  by 
a  mob  without ;  or  when  a  quarrel  arises  between  members ;  or  when 
the  house  is  informed  that  one  of  its  members  is  forcibly  detained 
from  his  attendance.  In  aU  cases  of  this  description,  the  subject 
requires  the  instant  attention  of  the  house,  even  though  a  member 
should  be  speaking,  and  supersedes  all  other  business  until  decided 
by  a  question,  or  otherwise  disposed  of  for  the  time  being. 

1296.  In  regard  to  the  practical  operation  of  the  rule,  that  whilst 
a  motion  is  pending,  no  other  can  be  made,  with  the  exceptions 
above  stated,  it  is  to  be  remarked,  that  when  a  new  motion  is 
declared  by  the  speaker  or  the  house  to  be  irregular,  as  not  coming 
within  any  of  the  excepted  cases,  the  motion  is  not  considered  as 
made  at  aU ;  so  that  when  the  pending  motion  is  disposed  of,  the 
mover  of  the  new  one  must  then  present  his  motion,  if  he  thinks 
proper  to  proceed  with  it,  in  precisely  the  same  manner  as  if  it  had 
never  been  moved ;  but,  when  the  new  motion  comes  within  the 
exceptions  and  is  thus  entitled  to  precedence,  it  merely  supersedes 
the  first,  for  the  time  being,  which  revives  and  is  before  the  house, 
in  the  same  manner  as  before,  when  the  second  motion  has  been 
decided,  unless  it  has  itself  been  decided  by  the  decision  of  the 
other.i 

1297.  A  motion,  which  is  in  order  when  it  is  made,  may  cease 
to  be  so  by  the  mere  lapse  of  time,  as  where  a  particular  time  is  set 
apart,  by  a  rule,  for  the  consideration  of  business  of  that  descrip- 
tion; in  which  case  the  business  in  question,  with  all  the  pending 


1  The  terms  in  which  this  rule  is  expressed,  "  The  question,    which  is  first  nftoved    and 

in  the  works  on  parliamentary  practice,  clearly  seconded,  is  to  be  put  first,"  (Hatsell,  II.  Ill); 

refer  to  the  order  of  proceeding  which  was  which  is  perfectly  intelligible,  if  referred  to  a 

observed,  when  the  members  expressed  their  time,  when  the  members  made  their  several 

several  opinions,  in  reference  to  any  subject  motions,  and  presented  them  all  to  the  house, 

that  was  introduced,  and  the  speaker  after-  before  any  one  was  stated  by  the  speaker, 

wards  framed  or  selected  the  question  from  But,  in  modern  times,  it  cannot  be  said  that 

the  turn  of  the  debate,  or  from  the  suggestions  there  is  a  question  first  moved,  because  in 

thrown  out  by  the  members  in  the  course  of  point  of  fact,  no  other  or  second  is  or  can  bo 

their  remarks.    Hatsell  states  tlu   -ule  thus :  moved,  except  as  above  stated. 


Chap.  IV.]       motions  as  to  the  time  when  made.  516 

motions  connected  with  it,  is  suspended  by  the  expiration  of  the 
time,  until  the  next  day  on  which  such  business  is  in  order.  Thus, 
where  Monday  of  each  week  was  devoted  to  the  consideration  of 
resolutions,  it  was  held,  that  a  resolution,  introduced  on  that  day, 
and  debated  until  the  expiration  thereof,  at  t\velve  o'clock  at  niid- 
.  night,  ceased  to  be  in  order  at  that  time,  and  then  passed  from  the 
assembly  until  the  next  Monday.^ 

1298.  But  whi^re  the  time  fixed  in  a  motion  for  the  doing  of  a 
particular  act  expires  whilst  the  motion  is  pending,  so  that  the 
doing  of  the  act  becomes  impossible,  as  where  a  resolution  provided 
that  debate  on  a  certain  topic  should  cease  at  two  o'clock  in  the 
afternoon  on  that  day,  which  hour  elapsed  whilst  the  resolution  was 
pending,  it  was  held  that  the  latter  did  not  thereby  become  objec- 
tionable in  point  of  order.- 

1299.  When  a  motion  has  been  proposed  and  decided,  it  cannot, 
as  has  already  been  seen,  be  moved  a  second  time  during  the  same 
session,  and,  if  so  moved,  is  objectionable  in  point  of  substance ; 
but  where  a  motion  has  not  been  decided,  but  only  disposed  of 
temporarily,  it  is  only  objectionable  if  renewed  within  the  time,  for 
which  it  is  considered  as  disposed  of,  but  not  afterwards  ;  as,  where 
the  proceeding  in  reference  to  a  particular  question  is  considered  as 
precluding  any  further  proceeding  in  relation  to  that  subject,  on  the 
same  day,  no  motion  can  be  made  relating  to  it  on  that  day,  though 
there  may  be  afterwards.  Thus,  where  a  motion  is  withdrawn  by 
the  leave  of  the  house,  it  cannot  be  renewed  the  same  day ;  ^  so, 
where  a  petition  is  ordered  to  lie  on  the  table,  a  motion  cannot  be 
received  on  the  same  day  for  referring  it  to  a  committee  ;  *  and  so, 
where  a  motion  has  been  suppressed  by  the  previous  question,  it 
cannot  be  renewed  on  the  same  day.^ 


1  J.  of  H.  31st  Cong.  1st  Sess.  577.  *  The  principle  seems  to  be,  that  an  order 

*  J.  of  H.  '29th  Cong.  1st  Sess.  1277 ;  Cong,  of  the    house    cannot  be  discharged  or  ro- 
Globe,  XV.  1223.  scinded,  on  the  same  day  on  which  it  is  made, 

^  Pari.  Reg.  XL.  173, 174.  nor  any  motion  sustained,  or  order  adopted, 

*  Hans.  (1),  VIII.  1002;  Same,  (2),  V.  171,  inconsistent  therewith.     This  principle  does 
172,  173.  not  seem  to  prevail  in  onr  legislative  assem- 
blies. 


5W  LEGISLATIVE  ASSEMBLIES.  [PaRT    VI. 


CHAPTER     FIFTH. 

OF   MOTIONS    FOR    THE    DISPOSITION   OF    OTHER    BUSINESS. 

1300.  A  motion  being  proposed  in  the  form,  in  which,  if  adopted, 
it  will  become  the  resolution,  order,  or  vote  of  the  house,  the  most 
simple  mode  of  disposing  of  it  is  to  submit  it  to  the  suffrages  of  , 
the  assembly,  to  be  adopted  or  rejected,  as  it  may  think  proper. 
But  it  is  not  always  the  case,  that  the  house  is  ready  to  come  to 
the  vote  immediately ;  it  may  wish  to  discuss  the  question  on  the 
one  side  and  on  the  other,  before  voting  upon  it;  it  may  wish  to 
defer  the  consideration  of  it  for  the  present,  either  for  the  purpose 
of  getting  more  information,  or  because  some  other  subject  demands 
its  instant  attention ;  the  form  in  which  the  motion  is  presented 
may  not  be  satisfactory,  and  it  may  be  necessary  ta  amend  it ;  or  . 
it  may  wish  to  get  rid  of  the  subject  without  coming  to  any  vote 
upon  it ;  or  the  subject  may  require  a  more  deliberate  and  careful 
consideration  than  can  conveniently  be  given  to  it  in  the  house, 
acting  according  to  its  accustomed  forms. 

1301.  In  order  to  give  expression  to  the  different  views  of  the 
members,  and  to  effect  such  a  disposition  of  a  subject  as  may  be 
satisfactory  to  the  house,  certain  motions  have  been  invented,  and 
are  now  become  established  by  usage,  which  are  made  use  of  by 
the  friends  and  opponents  of  every  motion,  in  reference  to  which  a 
difference  of  opinion  is  entertained,  for  the  purpose  of  promoting  or 
defeating  it.  Those  motions  are  the  foundation  of  proceedings  of 
different  kinds:  first,  amendment;  second,  postponement;  third, 
commitment;  and  fourth,  suppression. 

Section  I.    Of  Motions  to  Amend. 

1302.  The  term  amendment  is  used  to  denote  ^any  alteration 
which  may  be  proposed  or  adopted,  with  a  view  to  render  a  motion 
conformable  to  the  sense  or  wiU  of  the  house.  According  to  the 
etymology  of  the  word,  it  might  be  supposed  that  nothing  could  be 
considered  as  an  amendment,  which  did  not  relate  to,  and  purport 
to  improve,  the  original  proposition.  But  this  would  be  far  from 
conveying  an  adequate  idea  of  what  is  meant  by  the  term  amend- 


Chap.  V.]  motions  to  amend.  517 

ment.  A  proposition  may  be  amended,  in  parliamentary  phrase- 
ology, not  only  by  an  alteration  which  carries  out  and  effects  the 
purpose  of  the  mover,  but  also  by  one  which  entirely  destroys  that 
purpose,  or  which  even  makes  the  proposition  express  a  sense  the 
very  revers^e  of  that  intended  by  the  mover ;  and,  in  like  manner,  a 
motion,  which  proposes  one  kind  of  proceeding,  may  be  turned  into 
a  motion  for  another  of  a  wholly  different  kind,  by  means  of  an 
ainendment ;  so,  that,  in  point  of  fact,  an  amendment  is  equally 
effectual,  and  is  often  used  to  defeat  a  proposition,  as  well  as  to 
promote  the  object  which  the  mover  of  that  proposition  has  in  view. 
The  reason  is,  that  in  altering  or  amending  a  proposition,  the  form 
of  words  only,  and  not  the  sense  or  meaning  of  it,  is  regarded ;  any 
of  the  words  moved  may  be  left  out ;  any  other  words  may  be 
inserted  or  added ;  and  any  words  may  be  substituted  in  the  place 
of  other  words  contained  in  the  motion.  But,  though  the  sense  or 
meaning  of  a  proposition  is  not  regarded,  in  view  of  its  suscepti- 
bility of  being  amended,  there  are  nevertheless  certain  rules  relating 
to  amendments,  which  depend  upon  the  substance  of  the  proposi- 
tion to  be  amended,  and  which  it  is  therefore  important  to  under- 
stand. 

1303.  It  will  be  convenient,  in  considering  the  subject  of  amend- 
ments, first.,  to  state  the  general  rules  applicable  to  them ;  second, 
to  treat  of  them  in  reference  to  their  substance  ;  and  third,  in  refer- 
ence to  their  form ;  to  which  is  added  ^fourth  article,  treating  of  the 
cougruity  of  amendments  as  required  by  rule  in  some  of  the  Ameri- 
can legislative  assemblies. 


Article  I.     General  Rules  applicable  to  Amendments. 

1304.  All  amendments,  of  which  a  proposition  is  susceptible,  so 
far  as  form  is  concerned,  must  be  effected  in  one  of  three  ways, 
namely,  by  inserting  or  adding  certain  words ;  or  by  leaving  out 
certain  words ;  or  by  leaving  out  certain  words  and  inserting  or 
adding  others.  These  several  forms  of  amendment  are  subject  to 
certain  general  rules,  which  are  equally  applicable  to  them  all. 

1305.  First  Rule.  When  a  proposition  consists  of  several  sec- 
tions, paragraphs,  or  resolutions,  the  order  of  considering  and 
amending  it  is  to  begin  at  the  beginning,  and  to  proceed  through 
it  in  course,  by  paragraphs ;  and  when  a  latter  part  has  been 
amended,  it  is  not  in  order  to  recur  back,  and  make  any  amend- 

44 


51«  LEGISLATIVE  ASSEMBLIES.  [PaET   VL 

ment  or  alteration  of  a  former  part.  In  this  case,  the  presiding 
officer  usually  gives  notice  of  his  progress,  in  order  to  afford  an 
opportunity  for  amendments  in  a  subsequent  part ;  for,  otherwise, 
if  the  latter  should  be  proceeded  with  and  adopted,  it  w^ould  put  it 
out  of  the  power  of  the  house  to  adopt  any  amendment  in  any  pre- 
ceding part  of  the  proposition  as  it  stands.^ 

1306.  Second  Rule.  Every  amendment,  which  can  be  pro- 
posed, whether  by  leaving  out,  or  adding,  or  leaving  out  and 
adding,  is  itself  susceptible  of  amendment;  but  there  can  be 
no  amendment  of  an  amendment  to  an  amendment;  such  a 
piling  of  questions  one  upon  another  would  tend  to  emban-ass 
rather  than  facihtate  the  expression  of  the  will  of  the  assem- 
bly ;  and,  as  the  hne  must  be  drawn  somewhere,  it  has  been  fixed 
by  usage  after  the  amendment  to  the  amendment.^  The  object, 
which  is  proposed  to  be  effected  by  such  a  proceeding,  must  be 
sought  by  rejecting  the  amendment  to  the  amendment,  in  the  form 
in  which  it  would  be  proposed,  and  then  moving  it  again  in  the 
form  in  which  it  is  proposed,  and  then  moving  it  again  in  the  form 
in  which  it  is  wished  to  be  amended,  in  which  it  is  only  an  amend- 
ment to  an  amendment ;  and,  in  order  to  accompUsh  this,  he  who 
desires  to  amend  an  amendment  should  give  notice,  that,  if  rejected 
in  the  form  in  which  it  is  presented,  he  shall  move  it  again  in  the 
form  in  which  he  desires  to  have  it  adopted.'^  Thus,  if  a  proposi- 
tion consists  of  A  B,  and  it  is  proposed  to  amend  by  inserting  C  D, 
it  may  be  moved  to  amend  the  amendment  by  inserting  E  F;  but 
it  cannot  be  moved  to  amend  this  amendment,  as,  for  example,  by 
inserting  G.  The  only  mode,  by  which  this  can  be  reached,  is  to 
reject  the  amendment  in  the  form  in  which  it  is  presented,  namely, 
to  insert  E  F,  and  to  move  it  in  the  form  in  which  it  is  deshed  to 
be  amended,  namely,  to  insert  E  G  F. 

1307.  Thikd  Rule.  Whatever  is  agreed  to  by  the  house,  either 
adopting  or  rejecting  a  proposed  amendment,  cannot  be  afterwards 
altered  or  amended.  Thus,  if  a  proposition  consists  of  A  B,  and 
it  is  moved  to  insert  C ;  if  the  amendment  prevails  C  cannot  be 
afterwards  amended,  because  it  has  been  agreed  to  in  that  form 

lit   would  seem  to  be  proper,   therefore,  Deb.  VITI.  Part  2,  2410;  Cong.  Globe,  XIL  346; 

where    the    notice  above  mentioned    is   not  Same,  XVII.  319;  Same,  XVIIL  735;)  and  an 

given,  that  a  motion  to  amend  in  a  prior  part  amendment  frorii  the  otlier  branch  appears  to 

should  take  precedence  of  a  motion  to  amend,  be  no  exception  to  this  rule.     (Cong.  Globe 

*  An   amendment  to  an  amendment   of  an  XXI.  1178;  Same,  XX.  564;  Same,  XII.  303.) 

amendment,  or  as  it  is  called,  an  amendment  ^  Jefferson's  Manual,  Sec.  XXXIII. 
In  the  third  degree,  is  objectionable:  (Reg.  of 


Chap.  V.]  motions  to  amend.  519 

and,  so,  if  it  is  moved  to  leave  out  B,  and  the  amendment  is 
rejected,  B  cannot  afterwards  be  amended,  because  a  vote  against 
leaving  it  out  is  equivalent  to  a  vote  agreeing  to  it  as  it  stands. 

1308.  Fourth  Rule.  Whatever  is  disagreed  to  by  the  assembly, 
cannot  be  afterwards  moved  again.  This  rule  is  the  converse  of 
the  preceding.  Thus,  if  it  is  moved  to  amend  A  B  by  inserting  C, 
and  the  amendment  is  rejected,  C  cannot  be  moved  again  ;  or,  if  it 
is  moved  to  amend  A  B  by  leaving  out  B,  and  the  amendment  pre- 
vails, B  cannot  be  restored ;  because,  in  the  first  case,  C,  and,  in  the 
other,  B,  have  been  disagreed  to. 

1309.  Fifth  Rule.  The  inconsistency  or  incompatibility  of  a 
proposed  amendment  with  the  proposition  to  be  amended,  or  with 
an  amendment  which  has  already  been  adopted,  though  it  may  be 
urged  as  an  argument  for  its  rejection  by  the  house,  is  no  ground 
for  the  suppression  of  it  by  the  speaker  as  against  order.^  This 
principle  admits  of  an  exception  in  those  assemblies  in  which  it  is 
provided  by  rule,  that  no  subject  different  j&om  that  under  consider- 
ation shall  be  admitted  under  color  of  amendment. 

1310.  Sixth  Rule.  Motions  to  amend,  as  well  as  principal  or 
original  motions  may  be  withdrawn  or  modified  by  the  mover,  at 
his  pleasure,  before  being  proposed  to  the  house,  and,  afterwards, 
or  where  there  is  no  rule  on  the  subject,  by  leave  of  the  house, 
expressed  by  an  unanimous  vote.^  An  amendment,  which  is  with- 
drawn by  the  mover,  either  of  his  own  authority  or  by  leave  of 
the  house,  may  be  offered  again  by  him,  or  renewed  by  some  other 
member."^ 


Article  II.     Amendments  considered    with  reference   to  theif 

Substance. 

1311.  As  the  house  is  not  necessarily  obliged  to  consider  a  propo- 
sition, merely  because  it  is  regularly  moved  and  seconded,  it  is 
consequently  in  its  power  to  substitute  a  different  proposition  for 
the  one  moved,  and  this  may  be  done  by  means  of  an  amendment. 
Thus,  where  the  motion  pending  was  for  the  house  to  go  into  a 
committee  of  the  whole,  on  the  four  per  cent  annuities  acts,  and  a 
motion  was  made  to  amend,  so  as  in  effect  to  substitute  therefor  a 
motion  for  certain  papers  connected  with  the  pa^^sing  of  a  decree  by 
the  government  of  Portugal  materially  affecting  the  commercial 

» .TelTftison's  Manual,  Sec.  XXXV.  »  May,  R.  0.  etc.  131.  . 

«  May,  216. 


520  LEGISLATIVE   ASSEMBLIES.  [PART   VL 

relations  of  that  country  with  Great  Britain,  and  the  amendment 
was  objected  to,  on  the  ground,  that  it  had  no  relation  whatever  to 
the  subject  of  the  motion,  the  speaker  said,  that,  according  to  the 
forms  of  the  house,  and  the  law  of  parliament,  there  was  no  neces- 
sity that  the  amendment  should  be  akin  to  the  question.^ 

1312.  It  is  immaterial  whether  the  proposition  first  submitted,  or 
that  submitted  by  way  of  amendment,  is  an  original  motion,  or  a 
motion  relating  to  the  course  of  proceeding ;  thus,  if  a  motion  is 
made  that  a  particular  order  of  the  day  be  now  read,  or  that  the 
speaker  do  leave  the  chair,  an  original  proposition  of  any  kind  may 
be  moved  upon  such  motion  by  way  of  amendment ;  and,  so,  if  a 
resolution  is  moved  expressive  of  the  opinion  of  the  house  on  a 
certain  subject,  a  motion  that  a  particular  order  of  the  day  be  now 
read  may  be  made  as  an  amendment. 

1313.  In  the  house  of  commons,  the  right  to  substitute  one  sub- 
ject for  another,  by  means  of  an  amendment,  has  been  restricted  in 
reference  to  motions  for  reading  any  of  the  orders  of  the  day,  in 
consequence  of  the  practical  inconvenience  which  often  resulted 
from  the  public  business  being  thwarted  and  obsti'uctcd  by  substan- 
tive motions,  which  had  no  connection  with  the  orders  of  the  day, 
being  brought  forward  as  amendments  upon  them.  In  order  to 
remedy  this  inconvenience,  and  at  the  same  time,  to  give  the  house 
the  means  of  deciding  to  which  order  of  the  day  it  would  give  the 
preference,  it  is  now  provided  by  a  standing  order,  that,  on  a  motion 
for  reading  an  order  of  the  day,  one  amendment  and  one  only  shall 
be  moved  upon  it,  that  amendment  being  either  that  the  other 
orders  of  the  day  be  now  read,  or  that  some  particular  order  of  the 
day  be  taken  into  consideration.^ 

1314.  This  right  is  also  restricted  when  the  house  is  in  commit- 
tee of  the  whole,  having  a  particular  subject  under  consideration, 
which  has  been  referred  by  the  house  to  the  committee.  In  this 
case,  the  power  of  the  committee  being  derived  wholly  from  the 
vote  of  the  house ;  it  is  authorized  only  to  consider  the  subject 
referred  to  it ;  and,  consequently,  is  not  at  liberty  to  admit  of  the 
introduction  of  any  other  subject,  by  way  or  in  the  form  of  amend- 
ment. 

1315.  Upon  the  same  principle  of  parliamentary  law,  namely, 
that,  in  amendments,  the  form  of  words  only  and  not  their  sub- 


1  Hans.  (3),  XXIII.  785;   Same,  XXXVIIL      be  seen  hereafter,  an  exception  to  this  rule 
174, 190.     In  our  legislative  assemblies,  as  will     commonly  prevails. 

2  Hans.  (3),  L.  389,  390;  Same,  LIV.  1173 


Chap.  V.]  motions  to  amend,  521 

stance  is  concerned,  which  allows  of  the  substitution  of  one  subject 
for  another  by  way  of  amendment,  this  form  of  proceeding  is  fre- 
quently resorted  to  'by  the  opponents  of  a  motion,  to  defeat  it, 
sometimes  by  rendering  the  proposition  so  absurd,  that  its  original 
friends  are  obliged  to  unite  with  its  enemies  in  voting  against  it, 
and  sometimes  by  reversing  the  proposition,  and  then  adopting  it 
in  a  sense  the  very  reverse  of  what  it  originally  bore. 

1316.  Thus,  in  the  British  house  of  commons,  January  29,  1765, 
a  resolution  being  moved,  "  That  a  general  warrant  for  apprehend- 
ing the  authors,  printers,  or  publishers  of  a  libel,  together  with  their 
papers,  is  not  warranted  by  law,  and  is  in  high  violation  of  the 
Uberty  of  the  subject:"  it  was  moved  to  amend  this  motion  by 
prefixing  the  following  paragraph,  namely:  "  That  in  the  particular 
case  of  libels,  it  is  proper  and  necessary  to  fix,  by  a  vote  of  this 
house  only,  what  ought  to  be  deemed  the  law  in  respect  of  general 
warrants ;  and,  for  that  pm-pose,  at  the  time  when  the  determina- 
tion of  the  legality  of  such  warrants,  in  the  instance  of  a  most 
seditious  and  treasonable  libel,  is  actually  depending  before  the 
courts  of  law,  for  this  house  to  declare,  that  a  general  warrant  for 
apprehending  the  authors,  printers,  or  pubHshers  of  a  libel,  together 
with  their  papers,  is  not  warranted  by  law,  and  is  in  high  violation 
of  the  hberty  of  the  subject."  The  amendment  was  adopted,  after 
a  long  debate,  and  then  the  resolution  as  amended  was  immediately 
rejected  without  a  division.^ 

1317.  But  sometimes  the  nature  of  a  proposition  is  changed  by 
means  of  amendments,  wdth  a  view  to  its  adoption  in  a  sense  the 
very  opposite  of  what  it  was  originally  intended  to  bear.  The  fol- 
lowing is  a  striking  example  of  this  mode  of  proceedmg.  In  the 
house  of  commons,  April  10,  1744,  a  resolution  was  moved,  declar- 
ing, "  That  the  issuing  and  paying  to  the  Duke  of  Aremberg  the 
sum  of  forty  thousand  pounds  sterling,  to  put  the  Austrian  troops 
in  motion  in  the  year  1742,  was  a  dangerous  misapplication  of 
pubUc  money,  and  destructive  of  the  rights  of  parliament."  The 
object  of  this  resolution  was  to  censure  the  conduct  of  the  minis- 
ters; and  the  friends  of  the  ministry,  being  in  a  majority,  might 

1  This  mode  of  defeating  a  measure,  how-  by  inserting  after  the  words,  in  the  opinion  of 

ever,  is  not  ivlways  successful.    In  1780,  Mr.  this  house,  the  words,  it  is  now  ntcessanj  to  de- 

Dunning  having  made  a  motion,  in  the  house  cUire  that,  etc.     But  tiiis  amendment,  instead 

of  commons,  "  that,   in   the  opinion   of  tliis  of  intimidating   the   friends   of   the    original 

house,  the  influence  of  the  crown  has  increas-  motion  was  at  once  adopted  by  them,  and  the 

ed,  is  increasing,  and  ought  to  be  diminished,"  resolution  passed  as  amended.     Comm.  Joar. 

Mr.   Dundas,  lord-advocate   of   Scotland,  in  XXX.  70. 
order  to  defeat  the  motion,  proposed  to  amend, 

44* 


522  LEGISLATIVE  ASSEMBLIES.  [PaRT  VI 

have  voted  dii-ectly  upon  the  motion  and  rejected  it.  But  they  pre- 
ferred to  tui'n  it  into  a  resolution  approving  of  the  conduct  of  minis- 
ters on  the  occasion  referred  to  ;  and  it  was  accordingly  moved  to 
amend,  by  leaving  out  the  words  "  a  dangerous  misapplication," 
etc.,  to  the  end  of  the  motion,  and  inserting  instead  thereof  the 
words,  "  necessary  for  putting  the  said  troops  in  motion,  and  of 
great  consequence  to  the  common  cause."  The  amendment  being 
adopted,  it  was  resolved  (reversing  the  original  proposition)  "  That 
the  issuing  and  paying  to  the  Duke  of  Aremberg  the  sum  of  forty 
thousand  pomids,  to  put  the  Austrian  troops  in  motion,  in  the  year 
1742,  was  necessary  for  putting  the  said  troops  in  motion,  and  of 
great  consequence  to  the  common  cause."  ^ 

1318.  Motions  to  amend  are  subject  to  the  same  rules  as  original 
motions,  in  reference  to  their  substance,  namely,  that  no  motion  to 
amend  can  regularly  be  made,  which  contravenes  the  provisions  of 
law,  or  the  standing  or  special  orders  of  the  house,  or  which  is  sub- 
stantially the  same  ^  with  a  proposition  on  which  the  judgment  of 
the  house  has  aheady  been  expressed  dm-ing  the  same  session ;  or 
which  it  has  under  consideration. 

1319.  In  the  appUcation  of  the  last-mentioned  rule  to  the  case 
of  amendments,  when  the  house  has  agreed  that  certain  words  shall 
stand  as  part  of  a  question,  it  is  irregular  to  propose  any  amend- 
ment to  those  words,  as  the  decision  of  the  house  has  already  been 
pronounced  in  their  favor ;  and,  in  the  same  manner,  and  for  the 
same  reason  when  the  house  has  agreed  to  add  or  insert  words  in  a 
question,  its  decision  cannot  regularly  be  disturbed,  by  any  amend- 
ment of  those  words ;  though,  in  both  cases,  amendments  of  the 
words  may  be  made,  if  proposed  at  the  proper  time.-^ 

1320.  In  the  application  of  the  same  rule,  it  is  also  considered, 
that  when  the  latter  part  of  a  proposition  consisting  of  several  para- 
graphs has  been  amended,  tliis  is  equivalent  to  the  agreeing  to 
every  preceding  part  of  the  same  proposition  ;  the  natm-al  order  of 
considering  and  amending  a  proposition  being  to  begin  at  the 
beginning,  and  to  proceed  through  it  in  com-se  by  paragraphs,  with 
suitable  pauses  in  the  reading  to  allow  of  motions  to  amend. 

1321.  Li  the  application  of  the  same  rule,  it  is  further  considered 
according  to  the  modern  practice,  that  a  motion,  which  has  been 
withdrawn,  may  be  made  again  during  the  same  session,*  though 

1  Comm.  Jour.  XXIV.  652.  the  two,  presents  a  diflerent  question.    Cong. 

2  Where  two  propositions  have  been  voted      Globe,  XXI.  1281. 
upon  separately,  an  amendment,  embodying         ^  May,  229. 

*  May,  R.  0.  etc.  131. 


Chap.  V.]  .  motions  to  amend.  523 

it  is  otherwise  incorrectly  laid  down,  that  the  withdrawal  of  a  mo- 
tion to  amend  by  the  le^ve  of  the  house  is  so  far  equivalent  to  a 
judgment  upon  it,  that  the  same  amendment  cannot  be  moved 
again,^  which,  of  course,  does  not  apply  to  amendments  with- 
drawn by  the  mover  before  being  stated  to  the  house.'^ 


Article  III.     Amendments  considered  with  reference  to  their  Form, 

1322.  Amendments,  as  to  their  form,  are  effected  in  three  differ- 
ent modes :  first,  by  leaving  out  a  part  of  the  words  of  the  motion ; 
second,  by  adding  or  inserting  other  words ;  and,  third,  by  leaving 
out  certain  words  for  the  purpose  of  and  inse^'ting  other  words. 
To  these  must  be  added  several  other  proceedings,  which,  without 
in  strictness  belonging  to  either  of  these  forms,  have  for  their  pur- 
pose the  amendment  of  a  proposition,  namely :  fourth,  the  division 
of  a  proposition  into  two  or  more  questions ;  fifth,  the  filling  of 
blanks  purposely  left  or  made;  sixth,  the  uniting  together  of  two 
or  more  propositions  ;  seventh,  the  separation  of  one  proposition  into 
two  or  more ;  eighth,  the  transposition  of  the  several  parts  of  a  mo- 
tion; and,  ninth,  the  numbering  of  paragraphs  and  inserting  of 
formal  words.  These  several  topics  will  be  considered  in  their 
order. 

1.  Amendments  by  leaving  out  Words. 

1323.  A  proposition,  whether  consisting  of  a  single  paragraph  or 
several,  may  be  amended  by  leaving  out  a  part  of  the  words  of 
which  it  is  composed.  When  it  is  proposed  to  amend  in  this  form, 
—  that  is,  by  a  motion  to  leave  or  strilce  out  certain  words, — the 
question  is  always  stated  in  parliament,  not  whether  those  words 
shall  be  left  or  struck  out,  but  whether  they  shall  stand  as  part  of 
the  motion ;  so  that  the  mover  and  those  who  agree  with  him  vote 
against  the  question  as  stated  on  his  motion,  and  those  who  are 
opposed  to  the  amendment,  vote  in  favor  of  the  question. 

1324.  This  form  of  proceeding  on  a  motion  to  leave  out  words, 
seems  to  be  derived  from  the  practice  which  prevailed  at  the  period 
when  it  was  the  business  of  the  speaker  to  frame  the  question  from 

»  Pari.  Reg.  XXI.  847, 851,  853,  361.  tinctly  appear  whether  the  motion  was  vrith- 

«  In  Hans.  (3),  LXXX.  432,  798,  854,  it  drawn  by  the  mover,  before  it  had  been  stated 

appears,  that  a  resolution,  which  was  moved  to  the  house,  or  afterwards,  and  with  the 

and  withdrawn,  was  moved  again  on  a  subse-  leave  of  the  house. 

queut  day,  and  passed.    But  it  does  not  dis- 


524  LEGISLATIVE   ASSEMBLIES.        .  [PaRT   VI. 

the  debate.  It  seems  that  although  the  question  was  framed  by 
the  speaker  from  the  turn  of  the  debate,  and  might  therefore  be 
presumed  to  be  in  accordance  with  the  wishes  of  the  house,  any 
member  was  still  at  Uberty  to  offer  his  reasons  against  it,  either  in 
whole  or  in  part,  and  that  the  question  itself  might  be  laid  aside  by 
general  consent.  But  without  such  general  consent,  neither  the 
question  itself,  nor  any  part  of  it,  could  be  laid  aside  or  omitted ; 
and  although  the  general  debates  might  run  against  a  part  of  the 
question,  thereby  indicating  the  sense  of  the  house,  that  it  ought  to 
be  omitted,  and  authorizmg  the  speaker  to  do  so,  yet,  if  any  mem- 
ber, before  the  question  be  put  without  that  part,  stands  up  and 
deskes  that  such  words  or  clause  stand  in  the  question,  before  the 
main  question  is  put,  a  question  is  to  be  put,  whether  those  words 
or  such  clause  shall  stand  in  the  question.^ 

1325.  But,  though  this  form  of  proceeding  had  its  origin  in  a 
practice  which  is  now  out  of  use,  it  is  founded  in  good  reason ;  the 
question  is  thus  taken  in  the  same  manner  on  a  part  as  on  the 
whole  of  the  principal  motion,  which  would  not  be  the  case,  if  the 
question  was  stated  on  striking  or  leaving  out ;  inasmuch  as  the 
question  on  the  principal  motion,  when  it  comes  to  be  stated,  will 
be  on  agi-eeing  to  the  motion,  and  not  on  leaving  out  or  rejecting 
it.  Besides,  in  the  house  of  lords,  where  the  chancellor  has  no  cast- 
ing vote,  and  an  equal  division  is  equivalent  to  a  negative,  the 
same  question  would  be  decided  differently  according  to  the  man- 
ner of  stating  it;  if  stated  on  the  words  standing,  the  question 
would  be  decided  in  the  negative  by  an  equality  of  votes,  and  the 
words  would  consequently  be  omitted;  whereas,  if  the  question 
were  stated  on  striking  out,  an  equal  division  would  retain  the 
words.  K,  therefore,  when  it  is  proposed  to  amend  by  omitting 
words,  the  question  is  stated  on  striking  out  and  decided  in  the 
negative  by  an  equal  division,  and  the  entire  motion,  on  being  put 
to  the  question,  is  then  decided  in  the  negative,  by  an  equal 
division,  the  same  words  are  both  retained  and  rejected  by  pre- 
cisely the  same  vote. 

1326.  In  the  legislative  assemblies  of  tjiis  country,  after  some 
diversity  of  practice,  occasioned  probably  more  by  the  taste  and 
fancy  of  presiding  officers  than  by  any  considerations  of  fitness,  the 
question  on  leaving  out  words  is  always  stated,  not  whether  those 
words  shall  stand  as  part  of  the  question,  but  whether  they  shall  be 
struck  out.  The  effect  of  a  decision  in  this  form  is  precisely  the 
same. 

I  ScobeU,  22,  23. 


Chap.  V.]  motions  to  amend.  525 

1327.  If  an  amendment  is  proposed  by  leaving  out  a  particular 
paragraph  or  certain  words,  and  the  amendment  is  rejected,  that  is, 
if,  on  the  question  that  the  words  proposed  to  be  struck  out  stand 
as  part  of  the  motion,  it  is  decided  that  the  words  shall  stand,  it 
cannot  be  again  moved  to  leave  out  the  same  words  or  a  part  of 
them ;  but  it  may  be  moved  to  leave  out  the  same  words  with 
others  or  a  part  of  them  udth  others,  provided  the  words  so  proposed 
to  be  left  out  do  in  fact  constitute  a  different  proposition  from  that 
already  decided. 

1328.  If  an  amendment  by  leaving  out  is  agreed  to,  it  cannot  be 
afterwards  moved  to  insert  the  words  left  out  or  a  part  of  them  in 
the  same  place ;  but  it  may  be  moved  to  insert  the  same  words  in 
another  place,  or  the  same  words  with  others,  or  a  part  of  them 
with  others,  in  the  same  place,  provided  these  propositions  are  sub- 
stantially diflerent  from  a  motion  to  insert  the  same  words  or  a 
part  of  them  in  the  same  place. 

1329.  When  it  is  proposed  to  amend  by  leaving  out  a  particu- 
lar paragraph  or  certain  words,  the  amendment  proposed  may  be 
amended  in  three  different  ways,  namely,  by  leaving  out  a  part  only 
of  the  paragraph  or  words  proposed  to  be  left  out,  or  by  inserting 
or  adding  other  words,  or  by  leaving  out  and  inserting. 

1330.  The  effect  of  voting  on  a  proposed  amendment  by  leaving 
out  being,  as  abready  stated,  that  if  the  words  are  left  out,  they 
cannot  be  "reinserted,  and,  if  retained,  they  cannot  be  amended ;  it 
is  necessary  that  those  who  desire  to  retain  the  words,  should 
amend  them,  if  any  amendment  is  requisite,  by  making  their  mo- 
tions for  that  purpose,  and  this  they  have  a  right  to  do,  before  the 
question  is  taken  on  the  motion  to  leave  out.^ 

1331.  As  an  amendment  must  necessarily  be  put  to  the  ques- 
tion before  the  principal  motion,  so  the  question  must  be  put  on 
an  amendment  to  an  amendment,  before  it  is  put  on  the  amend- 
ment ;  but,  as  this  is  the  extreme  limit  to  which  motions  may  be 
put  upon  one  another,  there  can  be  no  precedence  of  one  over 
another  among  amendments  to  amendments,  which  must  conse- 
quently be  put  to  the  question  in  the  order  in  which  tJiey  are 
moved. 

1  Jefferson's  Manual,  XXXV.  It  is  pro-  strike  out  being  lost  shall  preclude  neither 
vided  by  rule  in  the  house  of  represents/-  amendment  nor  a  motion  to  strilie  out  and 
tives  of  the  United  States,  that  a  motion  to     insert. 


526  LEGISLATIVE    ASSEMBLIES.  [PaRT   VL 


2.  Amendments  hy  inserting-  Words. 

1332.  This  is  the  second  form  in  which  amendments  may  be 
made ;  and  when  an  amendment  is  proposed  in  this  form,  if  it 
prevails,  it  cannot  be  afterwards  moved  to  leave  out  the  same 
words  or  a  part  of  them ;  but  it  may  be  moved  to  leave  out  the 
same  words,  with  others,  or  a  part  of  the  same  words,  with  others ; 
provided  these  propositions  are  substantially  different  from  the  first. 
On  the  other  hand,  if  the  amendment  is  rejected,  it  cannot  be 
moved  again  to  insert  the  same  words  or  a  part  of  them  in  the 
same  place  ;  but  it  may  be  moved  to  insert  other  words  in  the  same 
place,^  or  the  same  words  in  a  different  place,  or  the  same  words 
with  others,  or  a  part  of  the  same  words  with  others,  in  the  same 
place,  provided  these  are  really  different  propositions  from  that 
akeady  decided. 

1333.  When  an  amendment  is  proposed  by  the  insertion  oi 
addition  of  certain  words,  the  proposed  amendment  may  itself  be 
amended  in  three  different  ways,  namely,  by  leaving  out  a  part,^  or 
by  inserting,  or  by  leaving  out  and  inserting ;  and,  if  any  amend- 
ment of  words  proposed  to  be  inserted  is  necessary,  those  who  are 
in  favor  of  the  motion  should  make  the  needful  amendments,  as 
they  have  a  right  to  do,  before  the  question  is  taken ;  because,  if  it 
is  rejected,  it  cannot  be  moved  again,  and,  if  adopted,  it  cannot 
be  amended.^ 

1334.  There  is  no  precedence  of  one  over  another  in  motions 
for  amendments  to  amendments  by  inserting,  any  more  than  in 
motions  to  amend  amendments  by  leaving  out. 


ig-. 


3.   Amendments  by  leaving  out  and  inserting 

1835.  This  form  of  amendment  is  a  combination  of  the  two  pre- 
ceding; and,  when  moved,  is  treated  precisely  like  those  two 
motions  and  put  consecutively  to  the  question,  first,  to  leave  out 
the  words  objected  to,  and,  second,  to  insert  the  others  proposed  in 
their  place.^ 

1  See  Comm.  Jour.  LVI.  209,  where  several  *  It  is  immaterial  whether  tlie  motion  is,  to 

successive  motions  to  insert  different  words  strike  out  certain  words  and  insert  others  in 

in  the  same  place,  were  made  and  negatived.  their  place,  or  to  strike  out  certain  words  in 

*  See  Comm.  Jour.  XXX.  70.  one  place,  and  add  or  insert  words  in  another 

«  Jefferson's  Manual,  Sec.  XXXV.  place. 


Chap.  V.]  motions  to  amend.  527 

1336.  "When  this  motion  is  made,  the  question  is  first  proposed, 
that  the  words  moved  to  be  left  out  stand  part  of  the  question  ;  and, 
if  this  question  is  decided  in  the  negative,  that  is,  that  the  words  be 
left  out,  then  another  question  follows,  that  tlie  words  proposed  as 
a  substitute  be  inserted  in  the  place  of  the  words  so  left  out. 

1337.  If  the  first  question  is  decided  in  the  affirmative,  all  amend- 
ment or  alteration  of  the  words  thus  agreed  to  is  precluded  in  the 
same  manner  as  if  the  motion  had  been  simply  to  leave  out  the 
same  words.^  Nor  can  a  motion  be  then  made  to  leave  out  for  the 
purpose  of  inserting  the  same,  or  even  different  words ;  the  words 
of  the  original  motion  being  already  agreed  to  as  they  stand. 

1338.  If  the  first  question  is  decided  in  the  negative,  and  the 
words  are  accordingly  left  out,  then,  on  the  second  question,  the 
words  proposed  as  a  substitute  are  to  be  treated  and  may  be 
amended,  in  the  same  manner  as  on  a  motion  simply  to  insert ; 
and,  if  "rejected  altogether,  other  words  may  be  proposed;  or 
the  proposition  may  be  left  as  amended  only  by  the  leaving 
out. 

1339.  Where  the  question  on  words  being  left  out  is  stated  on 
their  standing  as  part  of  the  question,  the  motion  to  leave  out  and 
insert  could  not,  without  much  awkwardness  and  inconvenience, 
be  proposed  as  a  single  question ;  but  where  the  motion  is  stated  in 
the  other  form,  one  question  only  is  commonly  put,  unless  it  is 
divisible  on  the  demand  of  a  member,  or  is  divided  by  order  of  the 
assembly,  in  which  case  it  may  be  put,  and  with  the  same  effect,  as 
tw^o  questions. 

1340.  Where  this  question  is  put  in  the  parliamentary  form,  or 
is  put  in  the  other  form,  as  divided,  it  has  precisely  the  same  form, 
and  is  attended  with  the  same  effect  and  operation,  as  the  two 
motions  to  leave  out  and  insert  taken  consecutively.  Where  it  is 
taken  as  a  single  proposition,  the  proceeding  may  be  more  compli- 
cated, inasmuch  as  the  friends  of  the  words  proposed  to  be  left  out, 
and  the  friends  of  the  words  proposed  to  be  inserted,  having  the 
right  to  amend  those  words  respectively,  questions  for  amending 
both  sets  of  words  must  be  taken,  before  the  question  is  proposed 
on  striking  out  and  inserting.^  A  motion  to  amend  by  striking  out 
certain  words  and  inserting  others  being  negatived  will  not  preclude  a 
motion  to  strike  out  the  same  words,  and  to  insert  others  of  a  tenor 


*  It  appears,  in  the  house  of  representatives     virtue  of  a  special  rule.    Con<T.  Globe,  XV. 
of  the  United  States,  to  be  held  otherwise,  in     1115,1110. 

*  Jetfersou's  Manual,  Sec.  XXXV. 


528  LEGISLATIVE    ASSEMBLIES.  [PaRT    VL 

different  from  those  first  proposed ;  or  to  strike  out  different  words, 
and  insert  the  words  first  proposed;  or  to  strike  out  the  same 
words,  and  insert  nothing.  These  are  different  propositions,  and 
others  may  be  imagined. 

1341.  When  it  is  moved  to  amend  by  striking  out  certain  words 
and  inserting  others,  the  manner  of  stating  the  question  is,  first  to 
read  the  whole  passage  to  be  amended,  as  it  stands ;  then  the  words 
proposed  to  be  struck  out ;  next,  those  to  be  inserted ;  and  lastly, 
the  whole  passage  as  it  will  stand  when  amended.  The  question 
may  then  be  taken,  either  singly,  or  as  divided  according  to  the 
practice  of  the  assembly.^ 


4.   Division  of  a  Proposition  into  two  or  more   Questions. 

1342.  The  mover  of  a  proposition,  as  has  already  been  seen,  is  at 
liberty  to  submit  it  in  such  form  as  he  pleases,  provided  only  that 
it  is  expressed  in  parliamentary  language.  Hence  it  sometimes 
happens,  that  a  motion  consists  of  several  different  parts,  in  refer- 
ence to  which  different  opinions  are  entertained  ;  but  which,  never- 
theless, as  the  motion  stands,  must  be  voted  upon  together ;  so  that 
a  member,  who  approves  of  a  part  of  the  motion,  but  not  of  the 
residue,  must,  if  he  votes  at  all,  vote  against  his  inclination  and 
judgment,  as  to  one  or  another  part  of  it. 

1343.  When  a  motion  is  complicated  in  this  manner,  there  are 
two  modes  of  proceeding,  with  a  view  to  enable  members  to  vote 
upon  the  parts  separately,  namely,  to  move  that  the  proposition  be 
amended  by  leaving  out  a  part  of  the  words  composing  it,  or  that 
it  be  separated  and  divided  into  as  many  questions,  each  to  be 
voted  upon  by  itself,  as  the  mover  thinks  proper,  or  as  there  are 
different  and  distinct  parts  to  the  motion. 

1344.  The  first  method  has  this  advantage  over  the  other,  that 
when  the  motion  to  amend  is  made  and  seconded,  members  have 
then  an  opportunity  of  expressing  then*  sentiments  directly  and  at 
once  upon  the  several  parts  of  the  motion,  as  they  are  presented  by 
the  amendment ;  and  this  method  is  ordinarily  sufficient,  where  the 
motion  is  only  susceptible  of  a  division  into  two  parts ;  but  where 
it  consists  of  more  than  two  parts,  the  other  form  of  proceeding  is 
more  simple  and  effectual. 

1345.  The  second  mode  has  this  advantage  over  the  first,  that 

^  Jefferson's  Manual,  Sec.  XXXV. ;  Hatsell,  II.  80,  87. 


Chap.  V.]  division  of  motions.  529 

where  the  motion  consists  of  more  than  two  parts,  it  is  at  once 
divided  into  as  many  questions  as  there  are  parts ;  though  as  this 
is  done  only  in  pursuance  of  a  previous  vote,  it  is  not  in  the  power 
of  any  two  members,  by  this  mode,  to  bring  the  house  to  vote 
directly  upon  the  diflerent  parts  of  the  motion,  but  only  to  a  vote 
upon  the  motion  that  the  question  be  divided.^ 

1346.  When  a  motion  is  made  for  dividing  a  question,  the 
motion  should  state  the  manner  in  which  the  mover  proposes  that 
the  division  should  be  made  ;  and,  if  this  is  not  satisfactory  to  the 
house,  the  motion  may  be  amended,  like  any  other  motion  for  an 
amendment.  1£  the  motion  prevails,  the  question  accordingly 
becomes  a  series  of  questions,  to  be  separately  considered  and 
voted  upon,  as  so  many  independent  propositions,  in  the  order  in 
which  they  stand. 

1347.  It  is  usual  in  the  legislative  assemblies,  and  in  other 
deliberative  bodies,  in  this  country,  to  provide  by  a  special  rule, 
that  every  complicated  question,  which  is  susceptible  of  division, 
in  point  of  form,  shall  be  divided  by  the  presiding  officer,  and 
put  to  the  vote  in  its  several  parts,  upon  the  demand  of  a  single 
member.  When  there  is  such  a  rule,  the  member  calling  for  the 
division  states,  in  the  first  instance,  into  how  many  and  what  parts 
and  in  what  order  he  requu-es  the  division  to  be  made,  and  the 
division  is  made  accordingly,  unless  the  member  is  overruled  by  the 
presiding  officer,  or  the  assembly.  When  there  is  no  such  rule,  a 
division  can  only  take  place,  by  means  of  a  motion  and  question 
for  that  purpose,  under  the  common  parliamentary  law.^  This 
motion  or  suggestion  is  incidental  to  the  general  course  of  business, 
and  may  be  made  at  any  time  after  the  question  is  stated,  and 
before  it  is  taken. 

1848.  In  all  cases,  both  where  a  division  is  moved  for,  and  where 
it  is  demanded,  it  is  for  the  presiding  officer,  subject,  of  course,  to  be 
overruled  by  the  assembly,  to  decide,  whether  the  proposition  in 
question  is  susceptible  of  the  division  moved  or  called  for  or  not.-^ 
A  motion,  in  order  to  be  divisible,  must  comprehend  points  so  dis- 
tinct and  entire,  that  if  one  or  more  of  them  is  taken  away,  the 
others  may  stand  entire  and  by  themselves ;  but,  a  qualifying  para- 
graph, as,  for  example,  an  exception  or  a  proviso,  if  separated  from 
the  general  assertion  or  statement  to  which  it  belongs,  does  not  con- 
tain such  an  entire  point  or  proposition.'* 

»  Appendix,  XTI.  3  Jefferson's  Manual,  Sec.  XXX^^. 

«  J.  of  H.  27tli  Coug.  1st  Sess.  132.  *  But  see  J.  of  H.  26th  Cong.  2d  Sets.  311. 

45 


530  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

1349.  The  rule  of  the  consress  of  the  confederation  was,  that  if 
the  question  in  debate  contained  several  points,  any  member  might 
have  the  same  divided ;  and  the  rule  of  the  house  of  representatives 
of  the  first  congress  under  the  constitution  was,  that  any  member 
might  call  for  the  division  of  a  question,  where  the  sense  would 
admit  of  it.  Under  these  rules,  the  practice  seems  to  have  been,  to 
regard  rather  the  substantial  meaning  of  a  proposition,  than  the 
form  of  words  in  which  it  was  expressed.  In  many  cases,  a  propo- 
sition was  held  to  be  divisible  in  which  some  of  the  members,  if 
adopted,  would  require  the  addition  of  formal  or  technical  words 
by  the  clerk,  to  make  them  into  distinct  propositions.  In  others, 
again,  propositions  were  held  to  be  divisible,  the  second  member  of 
which  was  a  mere  qualification  of  the  first,  and  recorded  on  the 
journal  to  have  failed,  of  course,  without  a  question,  in  consequence 
of  the  failure  of  the  fu-st.  The  rule  above  mentioned  is  now  applied 
with  more  strictness,  and  it  is  accordingly  held,  that,  in  order  to  be 
divisible,  a  proposition  must  not  only  contain  distinct  points,  but 
each  of  those  points  must  be  expressed  in  distinct  words,  so  as  to 
stand  by  itself.  A  motion  to  commit  with  instructions,^  which, 
according  to  the  old  practice,  might  be  divided,  and  the  question 
put  first  on  the  commitment,  and  second  on  the  instructions,  is  not, 
at  the  present  day,  divisible ;  the  instructions  not  constituting  a  dis- 
tinct point,  which  can  stand  of  itself,  in  case  the  commitment 
fails. 

1350.  When  a  proposition  is  thus  divided  it  becomes  a  series  of 
propositions,  to  be  considered  and  discussed,  like  separate  motions 
in  the  order  ^  designated  in  the  motion  or  question  on  which  the 
division  takes  place,  or  if  it  designates  no  order  then  in  the  order 
in  which  they  stand  in  the  original  proposition ;  and  as  each  mem- 
ber is  taken  up  for  consideration,  it  may  be  further  divided  if 
divisible,  until  the.  original  proposition  is  divided  into  all  the  dis- 
tinct propositions,  into  which  it  is  susceptible  of  being  divided. 
Thus  if  the  proposition  A  B  C  D  is  moved,  and  divided  into  two 
members  A  B,  and  C  D,  and  the  first  member  is  taken  up  for  con- 
sideration, it  may  be  further  divided,  if  divisible,  into  A  and  B,  and 
when  the  first  member  of  the  original  division  is  disposed  of,  and 
the  second  one  C  D,  is  taken  up,  that  may  be  further  divided,  if 
divisible,  into  C  and  D. 

1351.  The  divisibility  of  a  motion  is  to  be  determined  at  the 
time  when  a  division  is  called  for,  and  not  with  reference  to  the 

1  Cong.  Globe,  XXI.  1754, 1766.  «  Cong.  Globe,  XX.  319,  320. 


Chap.  V.]  division  of  motions.  531 

state  of  the  motion  at  the  time  it  was  made.  Thus,  if  the  proposi- 
tion A  B  C  D  is  moved,  which  is  then  divisible  into  three  parts 
only,  namely.  A,  B,  and  C  D,  and  is  divided  accordingly ;  the  first 
and  second  members  of  which  being  considered  and  adopted,  the 
third  is  taken  up,  that  member,  which  was  originally  indivisible, 
having  become  divisible  by  the  adoption  of  A  and  B,  may  now  be 
divided  into  C  and  D.^ 

1352.  When  a  division  takes  place,  each  member  of  it,  from  that 
time  forward,  becomes  and  is  treated  and  disposed  of  as  a  separate 
motion ;  and  the  motions  then  moved  on  the  original  proposition, 
and  pending,  are  separately  applicable  to  each  member  of  it.  Thus, 
if  the  proposition  A  B  C  D  being  pending,  a  motion  is  made  that  it 
be  ordered  to  lie  on  the  table,  and  then  a  division  of  the  principal 
motion  is  called  for,  and  it  is  divided  accordingly  into  A,  B,  C,  and 
D,  the  motion  to  lie  on  the  table  coheres  to  each  member  of  the 
motion,  and  is  the  first  question-  to  be  put  upon  each  when  it  is 
taken  up  in  its  order  for  consideration. 

1353.  It  is  common  in  this  country,  to  provide,  that  certain 
motions,  particularly  the  motion  to  strike  out  and  insert,  shall  not 
be  divisible.  This  provision  of  course  applies  as  well  to  motions 
as  suggestions  for  a  division. 


5.  Filling'  Blanks. 

1354.  It  often  happens  that  a  proposition  is  introduced  with 
blanks  purposely  left  to  be  filled  by  the  house,  either  witli  times  and 
numbers,  or  with  names  or  other  provisions  analogous  to  those  of 
the  proposition  itself.  These  blanks  are  filled  in  the  order  in  \vhich 
they  occur,  when  the  proposition  is  under  consideration.  Blanks  of 
the  latter  description  give  rise  to  motions  to  amend  \\  hich  do  not 
differ  from  other  amendments,  but  which  are  proceeded  with  in 
the  same  manner,  and  governed  by  the  same  rules  as  motions  to 
amend  by  inserting. 

1355.  Blanks  to  be  filled  with  times  or  numbers  are  also  treated 
in  the  same  manner,  when  only  one  proposition  is  offered ;  but 
when  it  is  desired  that  several  difterent  times  or  sums  should  be 
voted  upon,  they  are  not  offered  as  amendments  of  one  another,  but 
are  considered  as  original  motions,  to  be  made  and  decided  before 
the  principal  question.  In  a  proceeding  of  this  kind,  the  members 
make  their  several  propositions,  which  are  then  put  to  the  question, 

1  Cong.  Globe,  XXI.  1764,  1756. 


532  LEGISLATIVE    ASSEMBLIES.  [PaRT    VI. 

one  after  another  in  their  order,  beginning  with  the  least  sum  or 
longest  time,  as  the  case  may  be,  and  so  on  to  the  greatest  sum  or 
shortest  time,  or  until  the  house  comes  to  an  agreement  upon  some 
one  of  the  times  or  sums  mentioned.  This  order  of  taking  the 
question  is  in  conformity  with  an  ancient  rule,  that  "  where  there 
comes  a  question  between  the  greater  and  lesser  sum,  or  the  longer 
and  shorter  time,  the  least  sum  and  the  longest  time  ought  first 
to  be  put  to  the  question."  ^ 

1356.  This  rule  evidently  had  its  origin  in  that  period  of  parlia- 
mentary history,  when  it  was  the  custom  for  the  speaker  to  frame 
the  question  from  the  turn  of  the  debate,  and  was  doubtless  intend- 
ed to  control  his  discretion  as  to  the  question,  so  as  to  secure  to  the 
house  the  freest  exercise  of  its  constitutional  power  in  regard  to 
the  burdens  to  be  imposed  upon  the  people.  The  reason  of  the 
first  part  of  the  rule,  that  the  least  sum  is  to  be  first  put  to  the 
question,  is,  "  that  the  burdens  imposed  upon  the  people  might  be 
as  easy  as  possible."  The  reason  of  the  other  part,  that  the  longest 
time  is  to  be  put  first,  relates  to  the  mode  in  which  subsidies,  the 
ancient  manner  of  granting  aids  to  the  crown,  were  given.  The 
custom  was,  to  give  so  many  subsidies,  to  be  levied  in  such  a 
time ;  and  the  longer,  that  is,  the  further  off,  the  time  was  in  Avhich 
the  subsidy  was  to  be  collected,  the  easier  for  the  subject.^  This 
rule,  though  originally  introduced  into  parliament  with  reference 
merely  to  the  burdens  to  be  imposed  upon  the  people  in  the  way 
of  taxes,  and  therefore  applicable  in  modern  times  only  to  the  com- 
mittees of  supply  and  of  ways  and  means,  is  now  understood  to  be 
general  in  its  application  to  other  committees,  and  other  subjects.^ 
But  it  does  not  extend  to  the  proceedings  of  the  house  on  the  re- 
port fi-om  a  committee  where  amendments  are  proposed  in  the  com- 
mon form,'*  nor  to  other  proceedings  in  the  house.'^ 

1357.  In  the  legislative  assembhes  of  this  country,  the  rule  as  to 
filling  blanks  prevails,  and  is  usually  observed  not  only  in  commit- 
tee of  the  whole,  but  in  proceedings  in  the  assembly  itself.  The 
order  to  be  followed  in  putting  sums  and  times  to  the  question  is 
fixed  by  a  special  rule,  which  usually  requires  the  largest  (instead 
of  the  least)  sum,  and  the  longest  (that  is  the  furthest  off")  time,  to 
be  first  put  to  the  question.     This  is  the  rule  in  both  branches  of 


1  Coram.  Jour.  IX.  367.  ^  An  instance  occurs  in  Coram.  Jour.  XXXV. 

-  Hatsell,  II.  Ill,  note;  Same,  III.  173, 184,      370,  where  two  motions  to  adjourn  the  debate 

185.  appear  to  have  been  pending  at  tlie  same  time, 

*  May,  289.  the  nearest  of  which  was  put  to  vote  and  wae 

*  Hatsell,  in.  184,  note.  carried,  although  the  other  was  first  made. 


Chap.  V.]  addition,  etc.    congruitt.  533 

congress.     It  is  immaterial  whether  the  blank  is  left  or  jfirst  created 
for  the  [)urpose. 


6,  7,  8,  9.     Addition,  —  Separation,  —  Transposition,  —  Numbering 
of  Parag-raphs,  —  Formal   Words. 

1358.  When  the  matters  contained  in  two  separate  propositions 
may  be  more  properly  united  together  in  one,  the  mode  of  proceed- 
ing is,  to  reject  one  of  them,  and  then  to  incorporate  the  substance 
of  it  with  the  other  by  way  of  amendment.^ 

1359.  So  on  the  other  hand,  if  the  matter  of  one  proposition 
would  be  more  properly  distributed  into  two,  any  part  of  it  may  be 
struck  out  by  way  of  amendment,  and  put  into  a  form  of  a  new 
and  distinct  proposition.^ 

1360.  In  hke  manner,  if  a  paragraph  or  section  requires  to  be 
transposed,  a  motion  may  be  made  and  a  question  put  for  leaving 
it  out  where  it  stands,  and  another  for  inserting  it  in  the  place  de- 
sired;^ 

1361.  The  numbers  prefixed  to  the  several  sections,  paragraphs, 
or  resolutions  which  constitute  a  proposition,  are  merely  marginal 
indications,  and  no  part  of  the  text  of  the  proposition  itself;  and,  if 
necessary,  they  may  be  altered  or  regulated  by  the  clerk,  without 
any  vote  or  order  of  the  house.^ 

1362.  Formal  words,  also,  made  necessary  by  amendments,  may 
be  added  by  the  clerk  without  any  vote ;  thus,  where  the  word 
"that"  was  the  only  word  remaining  of  a  motion  as  originally 
made,  the  residue  being  added  by  way  of  amendment,  the  word 
"  resolved  "  was  prefixed  as  a  matter  of  form.^ 


Article  IV.     Of  the  Congruity  of  Amendments  as  required  by  Rule 

in  this  Country. 

1363.  The  inconsistency  of  a  proposed  amendment  with  the 
proposition  to  be  amended,  either  in  idea  or  in  w^ords,  is,  as  has 
aheady  been  seen,  no  objection  to  it  in  a  parliamentary  sense,  or 
as  a  matter  of  order.     It  is  true,  that  if  a  motion,  whether  in  the 

1  J.  of  II.  VIII.  624,  651-;  Same,  26th  Cong.  Siime,  24th  Cong.  1st  Sess.  1050;  Cong.  Globe, 

2d  Sess.  279.  XIII.  538. 

-  It  niifrht  be  more  convenient  to  refer  the         ^  J.  of  H.  III.  333. 
subjcct-miittor  of  this  and  the  two  preceding         *  J.  of  H.  29th  Cong.  1st  Sess.  1029. 
pnrugraphs  to  ii  committee  with  instructions.         *  Huns.  (3),  LVHI.  667,  673. 
See  also,  J.  of  H.  VII.  188;  Same,  VIII.  159; 

45* 


534  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

form  of  an  amendment,  or  of  an  original  proposition,  is  the  same 
with  one  upon  which  the  judgment  of  the  house  has  already  been 
expressed,  either  in  the  affirmative  or  negative,  or  which  is  still 
pending,  it  is  objectionable  on  that  ground ;  but  the  converse  of  this 
principle  is  not  true,  except  in  vu-tue  of  a  special  rule  to  that  effect, 
and  it  is  ordinarily  no  objection  to  a  proposed  amendment,  that  it 
is  inconsistent  with  the  measure  to  be  amended.  This  is  very 
commonly,  though  not  universally,  the  case  in  the  American  legis- 
lative assemblies  ;  as,  for  example,  in  the  house  of  representatives, 
but  not  in  the  senate,  of  the  United  States.^ 

1364.  In  the  congress  of  the  confederation,  the  first  legislative 
body  of  a  general  character  ever  assembled  in  this  country,  and 
which  was  the  immediate  precursor  of  the  congress  of  the  United 
States,  under  the  constitution,  it  was  a  very  common  practice,  by 
means  of  amendments,  to  separate  and  remove  from  before  the 
assembly  topics  originally  moved  and  under  debate.  In  this  way 
the  consideration  of  important  and  interesting  measures  was  some- 
times postponed,  and  others  brought  forward  without  due  notice  or 
preparation.  A  remedy  for  the  inconvenience  which  resulted  from 
this  practice,  was  first  attempted  in  the  code  of  rules  adopted  by 
congi-ess  in  the  year  1781.  The  fifteenth  rule  is  in  these  words, 
"  No  new  motion  or  proposition  shall  be  admitted  under  color  of 
amendment  as  a  substitute  for  the  question  or  proposition  under 
debate,  until  it  (the  latter)  is  postponed  or  disagreed  to."  Under 
this  rule,  which  continued  in  force  until  the  organization  of  the 
government  under  the  constitution,  new  propositions  might  still  be 
introduced  as  amendments ;  but  the  question  was  first  to  be  put 
and  taken  on  postponing  or  disagreeing  to  the  propositions  origi- 
nally made. 

1365.  The  house  of  representatives  of  the  first  congress,  which 
assembled  under  the  constitution,  on  the  4th  of  March,  1789, 
adopted  a  code  of  rules  for  the  conduct  of  its  business,  among 
which  is  the  following :  "  No  new  motion  or  proposition  shall  be 
admitted  under  color  of  amendment,  as  a  substitute  for  the  motion 
or  proposition  under  debate."  This  rule,  as  a  remedy  for  the 
evil  in  question,  was  insufficient  in  two  respects  ;  in  the  ffi-st  place, 
the  new  proposition  or  motion,  although  introductory  of  a  new 
subject,  was  not  objectionable,  unless  it  was  offered  as  a  sub- 
stitute ;  and,  in  the  second  place,  it  was  objectionable,  if  offered  as 
a  substitute,  although  it  introduced  no  new  subject ;  thus  precluding 

»  Cong.  Globe,  XX.  466,  629. 


Chap.  V.]  congruity  of  amendments.  535 

even  amendments  of  form,  provided  they  were  offered  as  substi- 
tutes. This  continued  to  be  the  form  of  the  rule  until  it  was 
changed  in  1822  and  expressed  in  its  present  terms. 

13C6.  This  rule,  adopted  in  March,  1822,  reaffirmed  by  evCTy 
succeeding  congret^s,  and  extensively  adopted  in  other  legislative 
assemblies,  is  as  follows :  "  No  motion  or  proposition,  on  a  subject 
difl'erent  from  that  under  consideration,  shall  be  admitted  under 
color  of  amendment."  Under  this  rule,  the  new  proposition  is  not 
objectionable,  unless  it  is  on  a  subject  different  from  that  under 
consideration;  and  in  that  case,  it  is  inadmissil)le,  even  though  if 
is  not  offered  as  a  substitute.  In  determining  whether  a  proposed 
amendment  comes  within  this  rule,  the  inquiry  relates  to  the  sub- 
ject-matter, and  not  to  the  proposition ;  the  former  may  remain 
the  same,  while  the  latter  is  changed  or  even  reversed.  Thus,  a 
resolution  that  the  prayer  of  a  particular  petition  ought  to  be  grant- 
ed may  be  amended  by  inserting  the  word  "not  "  before  "  ought;" 
the  subject  remaining  the  same,  but  the  resolution  being  thereby 
reversed.  Generally  speaking,  there  can  be  little  or  no  difficulty 
in  determining  whether  a  proposed  amendment  relates  to  the  same 
or  another  subject.  It  is  immaterial  whether  the  amendment  ap- 
plies directly  to  the  measure  in  question,  or  indirectly  through  the 
medium  of  instructions  to  a  committee.^  The  following  decisions 
under  this  rule  will  show  how  it  is  applied  in  practice. 

1367.  Thus,  on  a  resolution,  "  that  the  committee  on  manufac- 
tures be  vested  with  authority  to  send  for  persons  and  papers,"  it 
is  not  in  order  to  amend  by  strildng  out  all  after  the  word  re- 
solved, and  inserting  a  resolution  "  that  it  is  expedient  to  amend 
the  present  existing  tariff," "  etc.  So,  on  a  bill  making  an  appropri- 
ation for  fortifications  and  ordnance,  it  is  not  in  order  to  amend 
instructions  on  committing,  by  adding  thereto  a  pro\ision  relating 
to  the  disposition  of  the  proceeds  arising  from  the  sale  of  the  pub- 
lic land.'^  So,  on  a  bill  further  to  extend  the  time  for  locatinsr  orig- 
inal  military  land  warrants  and  returning  surveys  thereof,  it  is  not 
in  order  to  move  an  amendment  that  such  warrants  may  be  located 
upon  any  lands  of  the  United  States  which  may  then  be  subject 
to  private  entry .^  So,  where  it  was  moved  to  recommit  a  bill  re- 
lating to  judicial  salaries  with  instructions  to  inquire  into  the 
expediency  of  raising  the  salaries  of  district  judges,  it  was  held  to 
be  inadmissible  to  amend  the  instructions  so  as  to  inquire  into  the 

I  Cong.  Globe,  XXm.  523,  526.  »  J.  of  H.  27th  Cong.  1st  Sess.  223. 

»  J.  of  H.  20th  Coug.  1st  Sess.  103.  ^  .T.  of  H.  30th  Cong  1st  Sess.  737. 


536  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

expediency  of  equalizing  the  salaries  of  the  marshals  and  district 
attorneys.^  So,  on  a  resolution  for  the  supply  of  the  members  with 
stationery,  it  is  not  in  order  to  ingraft  an  amendment  proposing 
additional  compensation  to  persons  in  the  employment  of  the 
house.2 

1368.  Where  it  is  proposed  by  means  of  an  amendment  to 
change  a  particular  into  a  general  provision,  the  case  appears  to 
be  attended  with  more  difficulty.  Thus,  it  is  not  in  order  to  amend 
a  bill  for  the  relief  of  a  single  individual,  by  turning   it  into   a 

■  general  provision  of  law ;  ^  on  the  contrary,  where  a  bill  was  under 
consideration  granting  the  right  of  way,  and  making  a  grant  of 
lands  to  the  State  of  Michigan,  it  was  held  admissible  to  amend  it 
by  adding  thereto  a  provision  for  a  similar  grant  to  other  States  for 
sundry  railroads  therein.*  But  the  rule  seems  to  be  now  well  estab- 
lished, that  in  a  bill  for  the  relief  of  a  single  individual,  it  is  not 
in  order  to  amend,  either  by  inserting  a  provision  for  tlie  relief  of 
another  individual,  or  of  certain  other  individuals,  or  by  the  insertion 
therein  of  a  general  provision,^  that  is  to  say,  by  tm-ning  a  private 
into  a  general  bill. 

1369.  In  the  following  cases,  the  distinction  taken  by  the  house 
is  more  shadowy.  A  bill  being  pending,  proposing  to  the  State  of 
Texas,  the  establishment  of  her  northern  and  western  boundaries, 
the  relinquishment  of  all  territory  derived  by  her  exterior  to  the  said 
boundaries  and  of  all  her  claims  upon  the  United  States,  it  was 
moved  to  amend  the  same  by  adding  thereto  two  new  sections  pro- 
viding territorial  governments  for  the  territories  of  New  Mexico 
and  Utah.  This  amendment,  being  called  in  question  as  not  ger- 
mane to  the  biU,  was  held  admissible  by  the  speaker,  on  the 
ground  that  the  subject  of  the  bill  was  the  territory  acquired  by 
the  United  States  from  Mexico,  and  that  all  propositions  affecting 
that  territory  were  germane  to  the  biU.  This  decision  was  sus- 
tained by  the  house  on  appeal,  and  a  similar  decision  made  the 
next  day  was  acquiesced  in.  But  subsequently,  a  bill  being 
pending  for  the  admission  of  the  State  of  California  into  the 
Union,  and  an  amendment  being  moved  thereto,  providing  a  ter- 
ritorial government  for  Utah,  which  was  objected  to  as  not  ger- 
mane to  the  bill,  the  latter  was  sustained  by  the  speaker  on  the 
ground  above  mentioned.  On  appeal,  the  decision  of  the  chaii 
was  overruled.^ 

1  J.  of  H.  80th  Con^.  2d  Sess.  382.  *  J.  of  H.  31st  Conf;;.  1st  Sess.  967. 

*  J.  of  H.  31st  Coup;.  1st  Sess.  1510,  »  Coiir.  Globe,  XXIII.  312,  523,  526. 

»  J.  of  H.  31st  Cong.  1st  Sess.  784.  «  J.  of  H.  31st  Cong.  1st  Sess.  1333, 1415. 


CnAP.    v.]  MOTIONS   TO   POSTPONE.  537 


Section  II.    Of  Motions  to  Postpone. 

1370.  A  proposition  being  made  to  the  house  for  its  adoption, 
the  house  may  either  proceed  at  once  to  consider  and  act  upon  it, 
or  may  assign  some  future  time,  either  on  the  same  or  a  subsequent 
day,  for  its  consideration.  In  the  former  case,  the  proposition  may 
be  either  accepted,  or  rejected,  or  otherwise  disposed  of,  at  the 
time ;  or,  if  necessary  after  a  partial  consideration,  may  then  be 
postponed  for  further  consideration  to  a  future  day.  In  the  latter 
case,  the  subject  subsides  until  the  time  fixed  for  its  consideration, 
when  it  is  considered  and  acted  upon,  and  then  either  accepted,  or 
rejected,  or  again  further  postponed  for  consideration. 

1371.  The  postponement  of  a  proposition  sometimes  takes  place 
for  the  convenience  of  the  house  ;  sometimes  in  virtue  of  a  special 
rule  relating  to  the  particular  subject;  sometimes  in  consequence 
of  the  ditferent  stages,  through  which  it  must  pass,  each  on  a  differ- 
ent day.  before  it  can  be  adopted ;  in  all  which  cases,  the  proceed- 
ing is  conducted  by  the  friends,  or,  at  least,  by  those  who  are  not 
the  opponents,  of  the  measure ;  and  the  time,  to  which  the  subject 
is  postponed,  is  fixed  at  a  reasonable  and  convenient  day,  facili- 
tating, or,  at  least,  not  obstructing,  its  adoption. 

1372.  This  is  also  a  mode  of  proceeding  made  use  of  by  the 
opponents  of  a  measure  to  defeat  it ;  and,  when  a  postponement  is 
moved  with  this  view,  the  time  fixed  is  a  day  beyond  the  usual  and 
probable  dm-ation  of  the  session.  A  motion  to  postpone  to  a  day 
beyond  the  session,  though  moved  to  defeat  the  proposition  in 
question,  is,  in  a  parliamentary  point  of  view,  the  same  as  a  motion 
to  postpone  to  a  day  within  the  session,  —  is  governed  by  the  same 
rules,  —  and  if  it  prevails,  attended  with  the  same  parliamentary 
result. 

1373.  When  a  proposition,  either  on  its  original  introduction 
into  the  house,  or  on  passing  one  of  its  stages,  or  after  having  been 
partly  considered  at  any  time,  is  thus  assigned  for  consideration  on 
a  particular  day,  by  an  order  of  the  house,  the  subject  so  assigned, 
or  perhaps  more  properly,  the  order  for  its  consideration  on  the  day 
fixed,  is  called  the  order  of  the  day  for  that  day.  If,  in  the  com'se 
of  business,  as  commonly  happens,  several  orders  are  made  for  the 
consideration  of  different  subjects  on  the  same  day,  they  are  called 
the  orders  of  the  day.  The  orders  thus  made  are  registered,  under 
the  date  of  each  day,  in  a  book  kept  for  the  purpose,  called  the  order 


538  LEGISLATIVE  ASSEMBLIES.  [PaRT  VT. 

book,  which  is  constantly  on  the  table  of  the  house,  for  the  inspec- 
tion and  information  of  the  members. 

1374.  The  effect  of  an  order  to  postpone  a  subject  or  to  assign 
it  for  consideration  on  a  future  day  is,  in  general,  to  remove  it  from 
before  the  house,  until  the  day  assigned.  If  the  postponement  has 
taken  place,  on  the  motion- of  those  who  are  opposed  to  the  measure, 
and  the  day  assigned  is  beyond  the  session,  the  postponement  is 
equivalent  to  a  rejection.  But,  in  order  to  explain  the  subject  fully, 
it  wiU  be  necessary  to  consider  what  is  the  operation  of  such  an 
order ;  1,  on  the  day  on  which  it  is  made ;  2,  between  that  day  and 
the  day  assigned  ;  3,  on  the  day  assigned ;  4,  after  the  day  assigned, 
to  which  will  be  added,  5,  an  explanation  of  the  motion  to  post- 
pone according  to  parliamentary  usage  in  American  legislative 
assemblies, 

t.   Effect  of  an  Order  for  Postponement^  on  the  Day  on  which  it  is 

made. 

1375.  On  the  day,  on  which  the  order  of  postponement  is  made, 
that  order  cannot  be  rescinded  or  discharged,  nor  any  other  order 
made,  or  proceedings  take  place  inconsistent  with  the  former  order ; 
it.  being  a  general  rule,  that  every  order  of  the  house  whether 
affimative  or  negative  must  stand  as  such  during  the  day  on  which 
it  is  made.^ 

2.  Effect  of  between  the  Day  of  the  making  of  the  Order  and  the 

Day  assigned. 

1376.  During  this  period,  the  operation  of  the  order  is  to  post- 
pone the  consideration  of  the  subject  of  it,  untU  the  day  assigned, 
so  that  whilst  the  order  remains  in  force,  it  cannot  be  regularly  con- 
sidered until  that  time.^  The  order  itself,  in  the  mean  time,  may 
be  considered,  and  either  discharged  without  being  renewed,  or  it 
may  be  discharged  and  renewed  for  a  day  subsequent  to  that 
originally  assigned.^  But  it  cannot  be  discharged  and  renewed  for 
a  day  previous,"*  except  under  peculiar  circumstances ;  as,  where  on 
some  complaint  or  other  proceeding  against  a  member,  an  order 

1  Hans.  (1),  Vm.  1002;  Same,  (2),  V.  171,  ^  Parf.  Reg.  XXVIIL   414;    Same,   XLIV. 
172,  173;  Pari.  Reg.  XLIV.  230.  230. 

2  See  also  J.  of  S.  \.  408;  J.  of  H.  31st  Cong.  *  Hans.  (1),  XVIII.  755,  756,  757, 758;  Same, 
Ist  Sess.  405;  Coug.  Globe,  XV.  124.  IX.  845,  846;  Same,  VII.  618. 


Chap.  V.]  motions  to  postpone.  539 

having  been  made  for  his  attendance  in  his  place,  on  a  particular 
day,  the  order  was  discharged  at  his  request  and  for  his  conven- 
ience, and  renewed  for  a  day  previous  to  that  originally  fixed.^ 
When  an  order  is  discharged,  without  being  renewed,  the  subject 
of  it  remains  in  precisely  the  same  situation,  as  when  the  order  was 
made,  and,  if  renewed,  the  proceeding  must  commence  at  that 
point. 

3.   Effect  of^  on  the  Day  assigned. 

1377.  A  subject,  which  is  thus  assigned  for  consideration  on  a 
particular  day,  is  thereby  to  a  certain  extent  made  a  privileged 
question  for  that  day ;  although  it  is  still  within  the  power  of  the 
house,  if  it  pleases,  to  proceed  with  other  business  on  the  same 
day,  even  to  the  entire  exclusion  of  the  matter  which  is  the  order  of 
the  day.  It  does  not  result  from  the  fact  of  an  order  being  made 
for  the  consideration  of  a  particular  subject  on  a  day  assigned,  that 
no  other  business  can  be  attended  to  on  that  day,  or  even  that  the 
subject  assigned  shall  be  first  considered.  If,  therefore,  on  the  day 
assigned,  and  before  proceeding  with  the  order  of  the  day,  any 
other  subject  is  moved  and  seconded,  it  may  be  proceeded  wdth  and 
disposed  of,  if  the  house  acquiesces,  before  the  order  of  the  day  is 
taken  up ;  but,  inasmuch  as  the  subject  of  the  order  of  the  day  has 
been  assigned  for  consideration  on  that  day,  and  is  thus  entitled,  so 
far  as  a  previous  determination  of  the  house  can  entitle  it,  to  a 
preference  over  other  subjects,  it  is  competent  for  any  member,^ 
when  a  motion  is  made  to  introduce  any  other  subject,  or  while 
Buch  other  topic  is  under  consideration,  to  move  that  the  house  pro- 
ceed with  the  order  of  the  day ;  and  this  motion  will  take  prece- 
dence of  the  question  first  made,  and  must  be  first  put  and  decided. 
If  the  motion  for  the  order  of  the  day  is  determined  in  the  affirma- 
tive, the  subject  first  introduced  is  suppressed  for  the  day,  and  the 
house  proceeds  with  the  order  of  the  day;  if  in  the  negative,  the 
subject  of  the  order  of  the  day  is  suppressed  for  the  day,  and  the 
house  proceeds  with  the  business  first  introduced.  A  subject  may 
be  postponed  to  a  particular  day,  merely,  without  being  made  an 
order  of  the  day  for  that  day. 

1378.  If  there  are  several  orders  of  the  day,  the  house  may  either 
proceed  with  them  all,  or  with  any  one  in  particular.  When  the 
house  votes  to  proceed  with  the  orders  generally,  they  are  to  be  gone 

»  Hans.  (1),  XXI.  1092.  «  Pari.  Reg.  XLIV.  230. 


540  LEGISLATIVE  ASSEMBLIES.        '  [PaRT   VI. 

through  with  in  course  as  they  stand  in  the  order  book.  Where 
they  are  proceeded  with  separately,  no  one  is  entitled  to  any  prefer- 
ence over  the  others;  and  therefore,  a  motion  to  proceed  with  a 
particrdar  order  cannot  be  superseded  by  a  motion  for  any  other 
or  for  the  orders  generally.^  Where  one  or  more  of  several  orders 
of  the  day  have  been  gone  through  with,  those  that  are  left  still 
constitute  the  orders  of  the  day. 

1379.  In  order  to  proceed  with  the  orders  of  the  day,  on  the  day 
assigned,  a  motion  must  be  made,  either  that  the  order  of  the  day, 
if  there  be  but  one,  or  the  orders  of  the  day  generally,  if  there  are 
several,  or  that  a  particular  order,  if  it  is  desired  to  proceed  with 
one  only  out  of  several,  be  now  read.  If  no  such  motion  is  made 
during  the  day,  the  orders  drop,  that  is,  become  inoperative  in  con- 
sequence of  the  time  assigned  passing  by  without  their  being  exe- 
cuted. If  the  motion  is  negatived,  the  same  result  follows,  in  point 
of  fact ;  because  the  motion  for  the  orders  cannot  be  made  again 
on  the  same  day,^  and  by  the  expiration  of  the  day  without  their 
being  proceeded  with,  they  drop  of  course. 

1380.  On  this  motion  being  made,  any  member  who  wishes 
merely  to  postpone  the  subject  or  subjects  of  it,  may  effect  his 
object  by  moving  to  amend  by  leaving  out  the  word  "  now,"  to 
insert  the  day  to  which  he  desires  the  postponement  to  take  place. 
A  similar  motion  to  amend  may  be  made  use  of  to  defeat  the  mo- 
tion for  the  present  reading  of  the  order  or  orders,  by  fixing  upon  a 
time  for  the  postponement  beyond  the  probable  and  usual  duration 
of  the  session.  If  the  motion  to  amend  is  made  in  the  first  instance, 
for  the  purpose  of  postponement  merely,  and,  on  the  question  being 
put,  that  the  word  "  now "  stand  part  of  the  motion,  that  word  is 
left  out,  and  the  other  part  of  the  motion,  namely,  to  insert  the  time, 
is  then  put,  the  amendment  is  open  to  be  amended  by  substituting 
for  the  day  proposed  a  day  beyond  the  session. 

1381.  K  the  motion  for  present  reading  prevails,  then  the  order 
of  the  day,  if  there  is  but  one,  or  the  particular  order  moved,  or  the 
first  of  the  orders,  in  course,  if  there  are  several,  is  then  read. 
The  order  being  read,  the  business  thereby  assigned  is  brought  to 
the  knowledge  of  the  house,  and  must  either  be  proceeded  with,  laid 
aside,  or  further  postponed  to  a  time  within  or  beyond  the  session. 
If  the  order  is  to  be  proceeded  vnth,  the  appropriate  motion,  as 
indicated  by  the  subject  or  terms  of  the  order,  is  then  to  be  made 
and  seconded.     If  no  such  motion  is   made,  the  order  drops ;  if 

1  May,  218.  "  Pari.  Reg.  XLIV.  230. 


Chap.  V.]  motions  to  postpone.  541 

made,  the  subject  is  then  considered  and  disposed  of.  If  the  biisi- 
ness  is  not  to  be  proceeded  \viih,  but  laid  aside,  then  as  soon  as  the 
order  is  read,  a  motion  must  be  made  that  it  be  discharged.  If  this 
motion  prevails,  the  business  remains  precisely  where  it  was  before 
the  order  was  made,  and  may  either  be  renewed  for  a  future  day  or 
suffered  to  subside. 

1382.  But  the  opponents  of  the  measure  when  the  order  of  the 
day  is  discharged  may  defeat  it  beyond  the  possibility  of  revival, 
by  renewing  the  order  for,  that  is,  postponing  the  subject  to,  a  day 
beyond  the  session.  If  the  motion  to  discharge  the  order  should 
not  be  carried,  the  business  may  then  be  proceeded  with  as  before 
mentioned.  If  the  subject  of  an  order  of  the  day  is  to  be  further 
postponed,  a  motion  should  be  first  made  to  discharge  the  order, 
and,  if  this  motion  prevails,  then  a  second  motion  to  renew  it  for  a 
future  day.  In  all  these  cases,  where  a  motion  is  made  to  renew  the 
order  for  a  future  day,  by  those  who  are  in  favor  of  proceeding  with 
it,  those  opposed  may  propose  amendments  fixing  the  time  of  post- 
ponement at  a  day  beyond  the  session. 

1383.  After  the  subject  of  an  order  has  been  proceeded  with  it 
may  be  further  postponed,  by  its  friends,  to  a  day  within,  or  by  its 
opponents,  to  a  day  beyond  the  session,  by  means  of  a  motion  to 
adjourn  the  debate.  K  this  motion  prevails,  the  order  for  adjourn- 
ing the  debate  to  the  day  fixed  is  an  order  of  the  day  for  that  day ; 
and,  when  the  business  is  resumed  on  the  day  to  which  it  stands 
postponed,  it  is  taken  up  at  the  precise  point,  where  it  was  left  on 
the  adjournment.^  The  adjourned  debate  being  considered,  in  a 
parliamentary  point  of  view,  as  a  continuation  of  the  original 
debate,  and  as  making  a  part  of  it,  on  resuming,  the  motion  may 
then  be  withdrawn  or  suppressed  by  the  previous  question.^  A 
motion  to  adjourn  the  debate  is  not  regular,  on  the  question  that 
the  order  of  the  day  be  read  ;  ^  nor  until  the  subject  of  it  has  been 
proceeded  with ;  but  nothing  more  is  necessary,  than  that  a  motion 
should  be  made  and  a  question  proposed,  it  need  not  be  actually 
debated. 


4.  Effect  of,  after  the  Day  assigTied, 

1384.  If,  for  any  cause,  an  order  of  the  day  is  not  proceeded 
with  on  the  day  assigned,  it  becomes  what  is  called  a  dropped 
order;  the  subject  of  it  is  then  in  the  same  position  that  it  was  in 

>  If  tho  motion  does  not  prevail,  the  debate        "  Hatsell,  II.  Ill,  n. 
proceeds  as  before.  «  Hans.  (3),  XVI.  463,  464,  405. 

46 


542  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

before  the  order  was  made ;  and,  if  renewed  at  all,  the  proceeding 
must  commence  at  that  point.^  The  most  common  cause  of  the 
order's  dropping  is  that  no  house  is  formed  on  the  day  assigned,  or 
that  before  proceeding  with  the  orders,  the  house  is  adjourned  for 
want  of  a  quorum.  Sometimes,  the  orders,  or  a  part  of  them,  drop 
for  want  of  time  to  consider  them ;  but,  in  such  a  case,  it  is  usual 
to  discharge  all  that  are  not  proceeded  in,  and  to  renew  them  for  a 
future  day.  Where  the  orders  drop  for  want  of  a  quorum  on  the 
day  assigned,  it  is  not  unusual  to  take  them  up  on  the  next  day, 
without  any  further  notice,  or  any  renewal  of  them ;  though,  in 
strictness,  it  would  be  necessary  to  commence  the  proceedings  anew, 
at  the  point  where  they  were  at  the  time  the  orders  were  severaUy 
made.2 


5.    Of  the  Effect  of  the  Motion  to  postpone,  according  to  Parlia- 
mentary  Usage  in  this  country. 

1385.  By  means  of  the  system  of  orders  of  the  day,  which  has 
been  explained  in  the  preceding  paragraphs,  the  principal  business 
of  a  legislative  assembly  may  be,  and  that  of  the  two  houses  of  par- 
liament is,  in  fact,  transacted.  Business  of  every  kind,  when  intro- 
duced, if  not  then  entered  upon,  or  completed,  is  postponed  and 
made  the  order  of  the  day  for  a  future  day ;  orders  of  the  day  are 
proceeded  with,  and  either  completed  or  postponed  to  a  future  day ; 
orders  not  proceeded  with  are  renewed,  and  dropped  orders  are 
revived,  for  a  future  day.  In  this  round  of  proceeding,  every  thing 
is  considered  and  disposed  of  in  a  legislative  assembly,  according 
to  its  wishes.  In  this  country  there  are  two  forms  of  postpone- 
ment in  common  use,  both  of  which  are  effected  in  a  different 
manner  from  that  employed  in  parliament,  and  one  of  which,  in 
form,  at  least,  is  peculiar  to  our  legislative  assemblies.  These  are 
postponement  to  a  day  certain,  and  indefinite  postponement.  In 
parliament  the  first  is  effected  by  discharging  the  order  for  the  con- 
sideration of  a  subject  on  one  day  and  renewing  it  for  another ;  and 
the  nearest  proceeding  to  the  second,  which  could  take  place 
according  to  the  forms  of  parliament,  would  be  to  discharge  the 

1  By  a  rule  recently  adopted  in  the  house  of  general  form,  at  the  end  of  each  day's  proceed- 

commons,  it  is  provided,  that  "  all   dropped  ings,  that  the  orders  of  the  day  not  disposed 

orders  of  the  day  are  to  be  set  down,  in  the  of  are  continued  to  the  next  or  some  succeed- 

order  book  after  the  orders  of  the  day  for  the  ing  day. 

next  day  on  which  the  house  shall  sit;"  and  it  s  Pari.  Reg.  (2),  XML  144;   Same.  LVII 

is  frequently  entered  in  the  earlier  journals  of  202,  203. 
the  house  of  representatives  of  congress,  in  a 


Chap.  V.]  motions  to  commit.  543 

order  for  its  consideration  on  a  particular  day  without  renewing  it 
at  all.  The  motions  for  indefinite  postponement,  and  for  postpone- 
ment to  a  particular  day,  are  made,  put  to  the  question,  and 
entered  on  the  journal  in  that  specific  form.  Instead  of  two 
motions,  one  to  discharge  and  the  other  to  renew  the  order,  the 
motion  is  simple  and  direct,  that  the  consideration,  or  further  con- 
sideration (as  the  case  may  be)  of  the  matter  in  question  be  post- 
poned to  a  particular  day.  A  similar  form  is  used  when  the 
motion  to  postpone  indefinitely  is  made.  Postponement  to  a  day 
certain  is  attended  here  with  the  same  effect  as  in  parliament, 
except  that  when  it  is  moved  to  postpone  to  a  day  beyond  the 
legal  duration  of  the  assembly,  the  motion  cannot  be  entertained  as 
a  motion  for  indefinite  postponement,  for  such  alone  is  its  legal 
effect,  but  it  is  not  in  order.^ 

1386.  The  motion  to  postpone  indefinitely  is  of  American  origin, 
and  peculiar  to  the  legislative  assemblies  of  this  country,  in  which 
it  is  used,  as  an  adverse  motion,  to  reject  or  suppress,  and  with  the 
same  effect.-  In  the  house  of  representatives  in  congress,  it  is  pro- 
vided by  a  rule,  that  when  a  question  is  postponed  indefinitely,  it 
ehaU  not  be  acted  upon  again  at  the  same  session. 


Section  III.    Of  Motions  to  Commit. 

1387.  One  of  the  proceedings,  made  use  of  for  the  purpose,  or  in 
the  course,  of  an  orderly  and  appropriate  disposition  of  a  motion, 
was  stated  to  be  a  commitment,  or,  in  other  words,  a  reference  of 
the  subject  to  a  committee.  The  nature  and  functions,  as  well  as 
the  different  kinds,  of  committees,  and  the  manner  in  which  they 
are  appointed,  will  be  treated  of  hereafter.  In  this  place,  it  is  suffi- 
cient to  observe,  that  besides  certain  topics,  which  are  required  by 
standing  rules  or  the  established  course  of  proceeding  to  be  first 
considered  by  a  committee,  and  which,  therefore,  when  brought 
before  the  house  by  way  of  motion,  must  regidarly  be  referred  to  a 
committee ;  and,  besides  the  commitment,  which  takes  place  as  one 
stage  of  the  proceedings  in  the  passing  of  bills ;  it  sometimes 
becomes  necessary  to  refer  a  proposition  to  a  committee,  either  for 
the  purpose  of  further  inquiry  with  regard  to  the  subject-matter  of 
it,  or  of  some  collateral  subject,  or  for  the  purpose  of  putting  the 
proposition  into  a  more  satisfactory  form,  or  for  the  purpose   of 

1  Cong.  Globe,  XXI.  1459, 1G71.  (J.  of  H.  V.  262);  but  is  iifterwards  in  con- 

*  This  motion  first  occurs  in  the  house  of      staut  use. 
reoreseutatives  in  congress  in  the  year  1806, 


544  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

amendment  in  some  particular,  which  cannot  conveniently  be 
effected  by  an  amendment  proposed  and  made  in  the  house.  K  the 
subject  has  aheady  been  once  in  the  hands  of  a  committee,  a  sub- 
sequent reference  of  it,  either  to  the  same  or  a  different  committee, 
is  denominated  a  recommitment.^ 

1388.  Where  this  form  of  proceeding  is  desired  or  requisite,  it 
may  be  effected  either  by  a  simple  reference  of  the  motion  or  propo- 
sition to  a  committee,  to  be  then  or  at  some  future  time  appointed ; 
or  the  proposition  may  be  withdrawn  for  the  purpose,  and  a  motion 
substituted  for  the  appointment  of  a  committee  on  the  subject  ;2 
or  a  proposition  for  a  committee  may  be  moved  as  an  amendment 
to  the  original  proposition.^  Whatever  may  be  the  form  of  the 
proceedings,  the  subject  so  committed  is  disposed  of  until  the  report 
of  the  committee.^ 


•    Section  IV.    Of  Motions  to  Suppress. 

1389.  When  a  motion  is  made  and  pending,  which  it  is  desirable 
to  suppress  for  the  time  being,  without  coming  to  any  decision  upon 
it,  either  in  the  affirmative  or  negative,  and  without  so  far  enter- 
taining it  with  favor,  as  to  assign  any  time  for  its  future  considera- 
tion, this  object  may  be  effected  in  four  different  ways ;  first,  by  an 
adjournment  of  the  house  ;  second,  by  means  of  the  previous  ques- 
tion ;  third,  by  proceeding  to  the  orders  of  the  day ;  and  fourth,  by 
means  of  an  amendment. 


Article  I.    Adjournment. 

1390.  As  it  always  must  necessarily  be  within  the  power  of  the 
house  to  bring  its  sittings  to  a  close  for  the  day,  (for  otherwise,  it 
would  seem  that  it  might  be  kept  sitting  against  its  wUl  and  for  an 
indefinite  time,)  a  motion  to  adjourn  may  be  made  at  any  time, 
with  one  exception,  namely,  when  the  question  of  adjournment 
has  just  previously  been  put  and  decided  in  the  negative.  If  this 
motion,  therefore,  is  made  and  seconded,  whilst  any  other  question 
is  pending,  it  takes  precedence  of  such  question,  and,  if  decided 
in  the  affirmative,  that  question  is  of  course,  interrupted  and  super- 
seded, without  being  decided  either  in  the  affirmative  or  nega- 
tive. 

1  Jefferson's  Manual,  Sec.  XXVIII.  ♦  For   references    of  bills  see   Pari.    Keg. 

»  Hans.  (2),  \.  1050.  XLIV.  422;  Comm.  Jour.  LI.  69;   Pari.  Reg. 

»  Hans.  (2),  IV.   1409;    Same,  LXIV.  633.     XLVIL  612;  Comm.  Jour.  LU.  692. 


Chap.  V.]        motions  to  suppress,    adjournment.  545 

1391.  It  being  a  rule,  that  when  any  matter  of  business  is  pend- 
ing, it  must  first  be  disposed  of,  before  any  other  business  can  be 
undertaken,  it  follows,  that,  in  order  to  entitle  a  motion  for  an 
adjournment  to  take  precedence  of  any  other  question,  it  must  be 
made  simply  to  break  up  the  sitting,  and,  therefore,  in  the  simplest 
form,  namely,  "that  this  house  do  now  adjourn."  If  made  in  any 
other  form,  as,  to  a  particular  day,  or  for  any  specified  time,  (in 
which  case,  it  has  some  other  purpose  than  merely  to  break  up  the 
Bitting,)  it  will  not  take  precedence  of  the  question  pending,  and 
therefore  cannot  be  put  in  that  form,  unless  first  moved  as  an 
amendment  to  the  original  question,  and  substituted  therefor  by 
the  vote  of  the  house.  For  the  same  reason,  a  motion  simply  to 
adjourn,  if  made  as  an  independent  motion,  when  any  other  ques- 
tion is  pending,  is  not  susceptible  of  amendment,  by  the  addition 
of  time  or  place,  or  in  any  other  manner;  because,  if  so  amended, 
it  would  then  have  some  other  pm'pose  in  view  than  to  break  up 
the  sitting,  and  would  consequently  become  irregular  and  disorderly 
as  an  independent  motion. 

1392.  The  motion  to  adjourn  simply,^  from  its  very  nature,  takes 
precedence  of  all  other  motions,-  though  it  is  commonly  provided 
by  rule,  in  this  country,  that  it  shall  have  such  precedence,  and  shall 
be  decided  mthout  debate.  In  our  practice  this  question  is  always 
in  order,  when  the  member  who  makes  the  motion  is  himself  in  a 
situation  to  make  any  motion,  and  may  be  taken  by  yeas  and  nays ; 
and  a  motion  for  that  purpose  is  the  only  one,  not  even  a  question 
of  order,  or  an  appeal,'^  that  can  be  allowed  to  intervene  before  the 
question  is  taken. 

1393.  If  the  motion  to  adjourn  is  resolved  in  the  affirmative,  the 
pending  question  is  thereby  suppressed,^  with  all  other  business  for 
the  day,  and  removed  from  before  the  house,  so  that  if  renewed  at 
all,  it  must  be  brought  foi-ward  in  the  same  manner  as  if  it  had 
never  been  before  made ;  if  decided  in  the  negative,  the  original 
question  revives,  and  the  debate  is  resumed  at  the  point  where  it 
was  interrupted  by  the  motion  to  adjourn. 

1394.  The  question  of  adjournment  being  one,  in  which  the 


1  It  is  not  in  order  to  reconsider  a  vote  on  a  dencv  of  a  question  of  order,  which  a  member, 

motion  to  adjourn.    J.  of  H.  29th  Cong.  1st  in  rightful  possession  of  the  floor,  was  inter- 

Sess.  1089.  rupted  to  raise.     Cong.  Globe,  III.  265. 

«  A  motion  to  aajourn  is  in  order,  after  the         ^  Co„g_  Globe,  XXI.  384. 
assembly  has  voted,  but  before  the  decision         *  This  effect  is  usually  counteracted  in  oni 

has  been  announced.    J.  of  H.  26th  Cong.  1st  practice  by  a  special  rule. 
Sess.  266.    So  it  is  in  order,  during  the  pen- 

46* 


546  LEGISLATIVE  ASSEMBLIES.  [PaKT    VI. 

element  of  time  exists,  so  that  a  motion  made  to  adjourn  at  one 
time  is  not  the  same  motion  as  a  motion  to  adjourn  made  at 
another  time,  the  question  of  adjournment  may  be  moved  repeatedly 
upon  the  same  day ;  but,  as  there  must  be  some  lapse  of  time 
between  the  two  motions  in  order  to  render  them  different,  and  this 
lapse  of  time  can  only  be  denoted  by  some  parliamentary  proceed- 
ing,^ for  otherwise  nothing  would  intervene  to  change  the  situation 
of  the  house,  it  is  a  rule  that  after  a  question  of  adjournment  has 
been  resolved  in  the  negative,  a  second  motion  to  adjourn  cannot 
regularly  be  made,  until  some  intermediate  question  has  been  pro- 
posed ;  as,  for  example,  suppose  the  pending  question  to  be,  that  a 
particular  bill  be  now  read  a  second  time,  and  the  question  of 
adjournment  thereupon  moved  and  negatived,  a  second  motion  to 
adjourn  cannot  be  immediately  made,  but,  if  an  amendment  is  first 
proposed,  as  to  leave  out  the  word  "  now,"  for  the  purpose  of  insert- 
ing "  this  day  six  months,"  the  question  of  adjournment  may  then  be 
moved.  It  is  sufficient  for  the  purpose,  after  one  question  has  been 
put  and  carried  against  an  adjournment,  to  move  thereupon  that  an 
entry  upon  the  journals  (supposed  relevant)  be  read,  and  then  the 
question  of  adjournment  may  be  repeated.^ 

1395.  In  order  to  avoid  any  infringement  of  the  rule  above 
explained,  it  is  a  common  practice  in  parliament,  for  those  who 
desire  to  avoid  a  decision  upon  the  original  question,  on  that  day^ 
to  move  alternately  that  "  this  house  do  now  adjourn,"  and  that 
"  the  debate  be  now  adjourned."  The  latter  motion,  if  carried,  only 
defers  the  decision  of  the  house,  while  the  former  supersedes  the 
pending  question  altogether;  yet  members,  who  only  desire  to 
enforce  the  continuance  of  the  debate  on  another  day,  often  vote 
for  an  adjournment  of  the  house,  which,  if  carried,  would  supersede 

1  Tlie  rule,  as  to  the  intervening  business,  the  speaking  of  a  member  in  debate,  which 
the  doing  of  whicli  is  necessaiy  to  the  validity  are  quite  sufficient  for  this  purpose,  are  not 
of  a  second  motion  to  adjourn,  or  of  any  other  entered  on  the  journal  at  all.  The  true  test, 
motion,  into  which  the  element  of  time  enters,  undoubtedly,  is,  that  if  any  parliamentary  pro- 
after  a  former  motion  .of  the  same  sort  has  ceeding  takes  place,  whether  it  is  of  a  nature 
been  decided  in  the  negative,  is  commonly  to  be  entered  upon  the  journal  or  not,  the 
expressed  in  the  language  above  given;  and  second  motion  is  regular;  and  that  if  the  pro- 
it  seems  to  be  supposed,  at  least,  in  this  coun-  ceeding  is  not  of  a  nature  to  go  upon  the  jour- 
try,  that,  in  order  to  constitute  business  of  nal,  or  is  a  part  only  of  another  proceeding, 
this  description,  it  must  be  such  as  would  the  clerk  ought  to  enter  it  upon  the  journal, 
properly  require  to  be  entered  on  the  journal,  in  order  to  show  that  the  motion  is  regular. 
There  can  be  no  doubt  that  the  occurrence  of  -  Hatsell,  IL  109,  n.;  Same,  2(19,  and  note; 
any  business,  which  is,  in  fact,  entered  upon  J.  of  H.  27th  Cong.  2d  Sess.  774;  Same,  31st 
the  journal,  is  sufficient.  But  it  is  manifest  Cong.  1st  Sess.  1092;  Cong.  Globe.  XXI 
that  this  is  not  the  test;  for  the  intervention  1347. 
of  many  matters  of  business,  as,  for  example, 


Chap.  V.]        motions  to  suppress,    adjournment.     *  547 

the  question  which  they  are  prepared  to  support.  This  distinc- 
tion sliould  always  be  borne  in  mind,  lest  a  result  should  fc^llow 
widely  different  from  that  anticipated.  Suppose  a  question  to  be 
opposed  by  a  majority,  and  that  the  minority  are  anxious"  for  an 
adjournment  of  the  debate ;  but  that  on  the  failure  of  a  question 
proposed  by  them  to  that  effect,  they  vote  for  an  adjournment  of 
the  house;  the  majority  have  only  to  vote  with  them  and  carry 
the  adjournment,  when  the  obnoxious  question  is  disposed  of 
at  once,  and  its  supporters  have  themselves  contributed  to  its 
defeat.^ 

1396.  The  house  may  also  be  adjourned,  in  the  midst  of  a  debate, 
or  other  proceeding,  without  any  motion  or  vote  for  that  purpose, 
whenever  the  number  of  members  present  falls  below  the  number 
requisite  to  form  a  house,  namely,  forty  in  the  commons,  and  three 
in  the  lords.  When  this  happens,  and  notice  is  taken  of  the  fact 
by  the  speaker  or  any  member,  or  it  becomes  known  to  the  house 
by  the  numbers  on  a  division,  the  speaker  must  then  immediately 
adjourn  the  house ;  and  an  adjournment,  caused  in  this  manner,  has 
the  same  effect  of  suppressing  a  question,  as  a  formal  question  put 
and  carried  to  adjourn.'- 

1397.  The  effect,  which  an  adjournment  of  the  house  would  have 
upon  the  question  pending  at  the  time,  is  counteracted  to  a  great 
extent,  if  not  altogether,  in  our  legislative  assemblies  by  a  provision 
which  is  frequently  inserted  in  the  rules  and  orders  of  each,  that  the 
unfinished  business  in  which  the  assembly  was  engaged  at  the 
time  of  its  last  adjournment,  shall  have  the  precedence  in  the  orders 
of  the  day. 


Article  II.     Orders  of  the  Day. 

1398.  In  assigning  its  business  for  consideration  on  a  future  day, 
the  house  may  either  fix  upon  the  day  merely,  or  may  also  assign 
some  particular  hour  on  that  day.  In  the  former  case,  the  whole 
of  the  day  assigned  is  set  apart  for  the  consideration  of  the  motion 
in  question,  but  the  particular  part  of  it  which  may  be  taken  for 
that  purpose  depends,  in  each  case,  upon  the  vote  of  the  house. 


1  Mny,  217,  218.  must  wait  fox-  a  motion.    In  the  mean  time 

2  In  tliose  of  the  American  legislative  assem-  business  is  suspended,  but  is  renewed  agaia 
biles  m  which  a  less  number  than  a  quorum  ou  the  appearance  of  o  quorum. 

'^  authorized  to  adjourn,  the  presiding  officer 


548  LEGISLATIVE    ASSEMBLIES.  [PaRT    VL 

Where  the  hour  as  well  as  the  day  is  fixed,  the  speaker,  on  the 
arrival  of  that  hovir,  interrupts  aU  other  business,  and  announces 
that  fact  to  the  assembly.  He  then  waits  for  a  motion,  which  is  to 
a  certain  extent  a  privileged  one,  to  proceed  with  the  business  thus 
assigned.  The  assignments  of  the  first  kind  are  called  the  order,  or 
orders  of  the  day ;  the  others  are  denominated  special  assignments 
or  orders. 

1399.  A  subject  or  question,  which,  by  an  order  of  the  house, 
has  been  assigned  for  consideration  on  a  particular  day,  or,  in  other 
words,  for  the  consideration  of  which  a  particular  day  has  been 
assigned  and  set  apart,  is  thereby  so  far  made  a  privileged  question 
for  that  day,  that  a  motion  to  proceed  to  the  consideration  of  it  on 
that  day  is  entitled  to  take  precedence  of  and  supersede  any  other 
question  of  the  same  nature.^  If,  therefore,  on  a  day  assigned  for 
the  consideration  of  a  particular  subject,  any  other  question  is 
moved,  a  motion  may  be  made  for  reading  the  order  of  the  day ; 
and  this  motion  will  take  precedence  of,  and  must  be  decided  before 
proceeding  further  with,  the  other. 

1400.  If  the  motion  is  decided  in  the  affirmative,  the  house  pro- 
ceeds with  the  order  of  the  day  immediately,  and  the  original  ques- 
tion is  accordingly  superseded  until  after  the  order  of  the  day  has 
been  disposed  of,  when  it  may  again  be  moved ;  if,  in  the  negative, 
the  original  question  revives,  the  order  of  the  day  is  superseded, 
and  as  the  subject  of  it  cannot  be  proceeded  vvdth  on  that  day,  it  is 
equivalent  to  a  discharge  of  the  order.^ 

1401.  Where  there  are  several  orders  of  the  day,  the  motion  for 
reading  them,  in  order  to  supersede  a  pending  question,  must  be  for 
reading  the  orders  generally,  and  not  for  reading  a  particular  order ; 
and,  when  the  house  is  actually  engaged  upon  one  of  the  orders  of 
the  day,  a  motion  for  reading  the  orders  generally  is  not  admissible, 
for  the  purpose  of  suppressing  the  question  under  consideration, 
because  the  house  is  already  doing  that,  which  the  motion,  if  carried, 
would  oblige  them  to  do.^ 

1402.  This  mode  of  suppressing  a  question  cannot,  of  course,  be 
resorted  to,  when  there  is  no  order  of  the  day,  or  when  the  orders 
of  the  day  have  been  all  disposed  of;  but  where  there  are  several 
orders  of  the  day,  and  some  of  them  are  disposed  of,  on  separate 
motions,  those  remaining  may  be  moved  for  as  the  orders  of  the 
day. 

1  A  question  of  privilege  or  a  special  order         *  Pari.  Reg.  LXIV.  230. 
would  supersede  the  order  of  the  day.  '  May,  218. 


ClIAP.    v.]  MOTIONS    TO    SUPPRESS.  549 

1403.  It  should  be  observed,  that  an  order  of  the  day,  although 
it  generally  specifies  some  particular  thing  to  be  done,  with  regard 
to  the  suljject  of  it,  is  an  authority  for  doing  at  the  same  time, 
whatever  i)roi)erly  relates  to  the  same  subject.^  Thus,  where  there 
are  several  orders  of  the  day,  the  first  of  which  is  for  the  commit- 
ment of  a  bill  to  a  committee  of  the  whole  h()U^e,  the  house  may 
not  only  go  through  the  commitment  of  the  bill,  but  may  proceed 
to  pass  it,  under  the  same  authority,  before  proceeding  to  the  next 
order  of  the  day. 


Article  III.      Previous   Question. 

1404.  A  third  method  of  superseding  and  suppressing  a  questit  a 
already  proposed,  is  by  moving  what  is  called  the  previous  questioi. 
Any  motion,  which  gives  rise  to  a  question  previous  in  its  naturt 
to  another  question  to  which  it  relates,  may  properly  be  denomi- 
nated a  previous  question,  as,  for  example,  a  motion  to  amend,  or 
to  adjourn;  but  this  term  previous,  in  parliamentary  proceedings, 
has  been  long  exclusively  applied  to  a  motion,  which  is  intended  to 
obtain  a  decision  of  the  house,  as  to  the  propriety  or  expediency  of 
then  entertaining,  or,  in  other  words,  of  temporarily  suppressing  the 
subject  or  question  to  which  it  is  applied.  It  is  said  to  have  been 
introdviced  for  the  purpose  of  suppressing  subjects  of  a  delicate 
nature,  relating  to  high  personages,  or  which  might  call  forth  obser- 
vations of  a  dangerous  tendency. 

1405.  Though  this  is  the  proper  function  of  the  motion  for  the 
previous  question,  and  it  belongs  appropriately  to  the  class  of  mo- 
tions used  for  the  purpose  of  suppressing  the  subjects  to  which  they 
are  applied,  and  though  it  is  stUl  used  principally  for  that  purpose 
in  the  two  houses  of  the  British  parliament,  yet  it  has  received  so 
great  an  extension  in  legislative  practice  in  this  country,  and  is 
applied,  for  the  most  part,  as  we  shall  see  hereafter,  to  such  different 
purposes,  that  an  adequate  idea  of  this  important  portion  of  parlia- 
mentary machinery  can  scarcely  be  obtained,  without  treating  sepa- 
rately and  at  some  length,  of  the  previous  question,  as  used  in  the 
two  houses  of  parliament,  and  as  practised  upon  in  the  legislative 
assemblies  of  this  country. 

1  J.of  H.  VIU.  502;   Cong.  Globe,  XDI.  283. 


550  LEGISLATIVE    ASSEMBLIES.  [PaRT    VI. 


1.    Of  the   Previous    Question  according  to  the    Common  Parlia- 
mentary Law. 

1406.  At  the  time  when  this  motion  first  came  into  use,  (some- 
thing more  than  t^vo  hundred  years  ago,)  it  was  the  practice  for  the 
speaker  to  fi-ame  the  questions,  which  were  put  to  the  house,  from  the 
turn  of  the  debate,  as  well  as  to  receive  them  from  individual  mem- 
bers. The  state  of  the  debate,  which  gave  occasion  to  the  putting 
of  the  previous  question,  and  the  nature  of  the  motion  itself,  are 
thus  described  by  Scobell,  who  wrote  his  treatise  during  this 
period :  —  "  If,  upon  a  debate,  it  be  much  controverted,  and  much 
be  said  against  the  question,^  any  member  may  move  that  the  ques- 
tion may  be  first  made,  whether  that  question  shall  be  put,  or, 
whether  it  shall  now  be  put ;  which,  usually,  is  admitted  at  the 
instance  of  any  member,  especially  if  it  be  seconded  and  insisted 
on;  and  if  that  question  being  put,  it  pass  in  the  affirmative,  then 
the  main  question  is  to  be  put  immediately,  and  no  man  may  speak 
any  thing  further  to  it,  either  to  add  or  alter."  ^ 

1407.  At  the  present  day,  the  previous  question  is  moved  and 
seconded  like  any  other  motion,  without  regard  to  the  state  or  turn 
of  the  debate.  It  differs,  however,  in  this  respect,  from  other  mo- 
tions, that  it  is  moved  by  the  name  which  it  bears,  (the  term  pre- 
vious being  now  exclusively  appropriated  to  it  in  parliamentary 
proceedings,)  and  not  in  the  terms  in  which  it  is  proposed  to  the 
house  ;  though  there  is  no  other  reason  than  merely  usage,  why  it 
should  not  be  moved  in  the  latter  form.  The  motion  usually  made 
is  the  previous  question  ;  the  question  stated  and  put  to  the  house 
is,  "  that  the  main  question  be  now  put." 

1408.  When  this  motion  was  first  introduced,  the  question  was 
put  in  this  form,  "  that  the  main  question  be  put  ?  "  and,  if  resolved 
in  the  negative,  the  main  question  was  suppressed,  and  could  not 
again  be  moved  for  the  whole  session.  The  form  of  the  question 
was  afterwards  changed  (it  is  said  on  the  suggestion  of  Sir  Hariy 
Vane)  to  that  which  it  now  bears,  namely,  "  that  the  main  ques- 
tion be  now^  put?"  and  the  operation  of  it,  if  resolved  in  the 
negative,  is  to  suppress  the  main  question  for  the  day  only. 

1409.  The  purpose  of  this  motion  being  to  suppress  the  ques- 

1  That  is,  against  the  subject  or  form  of  it.  gested,  was  greatly  to  the  advantage  of  the 

»  Scobell,  27,  28.  reformers  of  that  day,  and  against  the  cotu-t 

'  The  insertion  of  this  word  into  the  terms  party. 
of  the  question,  by  whomsoever  it  was  sug- 


Chap.  V.]     motions  to  suppress. — previous  question.  551 

tion  to  which  it  is  applied,  by  coming  to  a  resolution  or  vote,  that 
that  question  shall  not  be  put,  it  would  seem  most  appropriate  that 
the  question  should  be  so  framed,  that  a  decision  of  it  in  the 
affirmative  should  produce  the  desired  result.  But  this  is  not  the 
case ;  the  terms  of  the  question  are  so  expressed,  tiiat  the  mover 
and  those  who  vote  with  him  vole  agahist  the  motion;  and  the 
motion  is  said,  in  common  language,  to  be  carried,  though,  in  point 
of  form,  it  has  been  decided  in  the  negative.  This  apparent  in- 
consistency results  probably  from  the  fact,  that  the  question  re- 
ceived its  form  at  a  time  when  it  was  not  moved  by  a  member, 
but  framed  by  the  speaker  from  the  tm-n  of  the  debate. 

1410.  If  the  previous  question  is  decided  in  the  negative,  namely, 
that  the  main  question  shall  not  now  be  put,  the  effect  of  this  de- 
cision is,  that  the  same  question  cannot  be  moved  again  the  same 
day,  but  may  be  on  any  subsequent  day.  If  the  question  is  mate- 
rially changed,  so  as  to  become  in  fact  a  different  question,  it  may 
be  moved  again  the  same  day ;  but,  if  altered  in  form  or  words 
only,  without  being  essentially  and  substantially  altered  in  matter, 
it  cannot  be  moved  until  a  subsequent  day.^  The  suppression  of  a 
question  for  the  day,  by  means  of  the  previous  question,  seems  to 
result  from  the  general  principle,  that  an  order  of  the  house  can- 
not be  rescinded  or  discharged  on  the  day  on  which  it  is  made. 

1411.  It  seems  that  a  motion  is  to  be  deemed  the  same  as  one 
already  suppressed  by  the  previous  question  provided  it  was  a  part 
of  and  included  in  the  motion  so  suppressed :  thus,  a  motion  hav- 
ing been  made  in  the  house  of  commons  that  a  message  be  sent  to 
the  lords,  desiring  that  leave  should  be  given  to  three  of  the 
lords,  naming  them,  to  attend  and  be  examined  as  witnesses  be- 
fore a  committee  of  the  house  of  commons,  which  motion  was  sup- 
pressed by  the  previous  question;  and  a  similar  motion  being 
then  made  for  a  message  in  similar  form,  desiring  the  attendance 
of  one  of  the  lords  named,  the  speaker.  Sir  John  Cust,  said,  "  that 
h,s  the  house  had  determined  not  to  jiut  the  question  on  all  the 
three  lords,  it  would  be  disorderly  to  put  it  on  one  singly."  - 

1412.  If  the  previous  question  is  moved  and  carried  in  the 
negative,  confessedly  for  the  purpose  of  introducing  the  same  (main) 
question,  with  essential  alterations  and  amendments,  the  moving  of 
such  new  and  amended  question  does  not  seem  to  be  irregular : 
because  the  rule  of  not  puttmg  again  a  question  against  which  the 
previous  question  has  been  carried  in  the  negative,  must  always 

1  Hatsell,  IL  116.  *  Ciiv.  Deb.  I.  81,  82. 


552  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

be  explained,  iii  the  observance  of  it,  by  the  nature  and  turn  of  the 
debate,  and  the  sense  which  the  house  puts  on  the  word  "  now," 
in  their  arguments  upon  the  previous  question.^ 

1413.  If  the  previous  question  is  resolved  in  the  affirmative,  no 
alteration  of  the  main  question  can  then  take  place  by  way  of 
amendment,  nor  can  any  further  debate  be  suffered  to  intervene ; 
but  the  main  question  must  be  put  immediately  and  in  its  exist- 
ing form.'-  The  previous  question  may  be  suppressed  by  an  ad- 
journment of  the  assembly.'^ 

1414.  The  previous  question  cannot  be  put  upon  an  amend- 
ment,^ because  the  question  on  the  amendment  being  that  certain 
words  be  inserted  or  added,  or,  that  certain  words  stand  part  of  the 
question,  the  decision  of  this  question  only  determines  that  the 
words  of  the  motion  shall  or  shaU  not  be  added,  inserted,  or  stand 
in  that  particular  place,  and  has  therefore  all  the  effect  of  a  previous 
question.'^ 

1415.  Nor  can  the  previous  question  be  put  upon  any  of  the 
other  merely  subsidiary  motions  which  are  used  lilce  the  previous 
question  itself  for  the  suppression  of  other  original  motions.  Thus 
it  cannot  be  applied  to  the  motions  to  postpone  or  to  commit,  or 
that  a  motion  be  ordered  to  lie  on  the  table.  Nor  on  the  other 
hand,  can  any  of  these  motions  be  put  upon  the  riiotion  for  the 
previous  question.^ 

1416.  It  has  been  held,  that  the  previous  question  was  improper 
in  a  question  of  privilege ;  as,  in  the  case  of  IVIr.  Wilkes,  whose 
petition  having  been  presented,  complaining  of  his  detention  in  the 
king's  bench  prison,  notwithstanding  he  had  been  elected  a  member 
of  the  house  of  commons,  a  motion  was  made,  that  it  do  lie  on 
the  table,  and  it  being  suggested  that  this  motion  might  be  sup- 
pressed by  the  previous  question,  it  was  said  by  leading  members 
at  once,  and  not  denied,  that  such  a  course  would  be  irregular.'^ 

1417.  When  a  question  has  been  moved  and  seconded,  and  pro- 
posed from  the  chair,  and  the  previous  question  has  been  moved 
and  seconded  and  also  stated  from  the  chair,  it  is  not  in  order 


1  Hans.  (3),  LXIV.  261 ;  Hatsell,  II.  124.  '  Cav.  Deb.  I.  48.    It  has  been  decided  in  the 

2  Hatsell,  II.  122  and  note;  Lex.  Pari.  292.  house  of  representatives  of  the  United  States, 

3  May,  R.  0.  etc.  124.  that  the  previous  question  is  as  much  appli- 

*  Comm.  Jour.   XXXU.    834;  J.  of  S.   HI.  cable  to  a  personal  charge  against  a  member, 
17;  J.  of  H.  VI.  61.  as  to  any  other  question.     Cong.  Globe,  VIH. 

6  Hatsell,  II.  116.  532;  Same,  XI.  345;  Same,  XIIL  578;  Same, 

•  Jefiferson's  Manual,  Sec.  XXXIH.  XVII.  359,  360. 


CflAP.   v.]      MOTIONS  TO   SUPPKESS.  —  PREVIOUS   QUESTION.  •    553 

then  to  move  to  amend  the  main  question,  without  first  \vithdraw- 
ing  the  previous  question.^ 

1418.  The  ellect,  therefore,  according  to  the  common  parlia- 
mentary law,  of  moviniT  the  previous  question  is  threefold :  first, 
as  soon  as  it  is  moved  and  seconded  and  proposed  from  the  chair, 
no  other  motion  relating  to  the  main  question  is  admissible,  unless 
the  previous  question  is  first  withdrawn  ;  second,  if  resolved  in  the 
negative,  the  main  question,  both  in  substance  and  form,  is  sup- 
pressed for  the  day,  which  is  ordinarily  considered  as  equivalent  to 
a  defeat ;  and  third,  if  resolved  in  the  ailirmalive,  the  main  ques- 
tion must  then  be  put  immediately,  without  further  debate,  amend- 
ment, or  delay.  In  the  mean  time,  the  debate  is  continued  as 
before.  Hence,  it  happens  that,  when  the  previous  question  is 
moved  and  seconded,  the  adversaries  of  the  measure,  instead  of 
being  confined  in  the  debate  to  its  merits,  as  would  otherwise  be 
the  case,  have  the  advantage  of  all  objections  which  can  be  urged 
against  the  proposition  itself,  against  the  time  when  it  is  brought 
forward,  and  against  the  form  in  which  it  is  moved ;  and  this 
is  an  advantage  of  which  they  cannot  be  deprived,  so  long  as  a 
single  member  objects  to  the  withdrawal  of  the  previous  ques- 
tion.'^ In  our  legislative  assemblies  the  merits  of  the  main  ques- 
tion are  not  allowed  to  be  discussed,  on  the  motion  for  the  pre- 
vious question. 

1419.  The  peculiar  character  of  this  motion  has  caused  it  to  be 
variously  characterized,  according  to  the  temper  and  disposition  of 
members,  and  its  operation  upon  motions  in  which  they  were  in- 
terested. On  the  one  hand,  it  has  been  called  "  a  sort  of  parlia- 
mentary ti-ick,"  ^  "  a  mere  subterfuge  to  evade  the  material  ques- 
tion," ^  and  the  member  moving  it  has  been  charged  with  "  skulking 
behind  a  previous  question."  °  On  the  other  hand,  it  has  been 
considered  as  a  very  proper  proceeding  for  the  disposition  of  a 
question,  to  which  members  "  could  neither  give  a  direct  affirma- 
tive or  negative ; "  '^  Lord  ChanceDor  Loughborough  said  of  it,  that 
the  real  meaning  of  the  previous  question  was,  "  that  when  a  mo- 

1  Hatsell,  II.  122.  In  Hans.  (1),  II.  557,  Jlr.  Speaker  Abbott 

2  In  parliamentary  language,  the  previous  said,  "  that  it  was  only  in  the  case  of  an 
question  is  said  to  be  carried  when  it  is  de-  amendment  by  the  previous  question,  that 
cided  in  the  negative;  the  object  of  the  mover  the  rejection  of  the  amcndraeut  precluded 
and  of  those  who  vote  with  him,  being  to  sup-  further  debate." 

press  the  main  question.    The  term  amend-  ^  Comm.  Deb.  VIII.  43,  44. 

ment  is  sometimes  used  to  signify  a  motion  .  *Parl.  Reg.  XXXIX.  192,  193. 

which  takes  precedence  of  and  supersedes  *  Pari.  lieg.  (2),  X.  27. 

another,  as,  for  example,  a  motion  to  adjourn.  «  Piurl.  Reg.  XI.  332. 

47 


554  LEGISLATIVE  ASSEMBLIES.  [PaRT  VL 

tion  was  made  that  was  not  fit  for  discussion,  the  previous  ques- 
tion was  moved  to  get  rid  of  it  altogether,  and  prevent  alterca- 
tion upon  a  subject  that  did  not  admit  of  argument ; "  ^  Mr.  Fox 
gave  it  as  his  opinion,  "  that  when  the  house  did  not  approve  of  a 
proposition,  or  did  not  wish  to  go  immediately  into  it,  nothing 
was  more  proper  than  to  move  the  previous  question,  which  did 
not  preclude  a  subsequent  discussion  of  the  same  subject,  if  any 
member  should  think  it  necessary  to  bring  it  forward ; "  ^  and  ]\Ir. 
Grey  said,  "  that  the  adoption  of  the  previous  question  was  noth- 
ing more  than  a  postponement  of  the  debate,  and  did  not  by  any 
means  preclude  the  house  from  subsequently  taking  any  step  in 
the  same  question  which  they  might  think  expedient."  ^ 

1420.  But  the  previous  question  may  be  decided  in  the  affirma- 
tive, as  well  as  in  the  negative,  that  is,  that  the  main  question  shall 
nov/  be  put ;  in  which  case,  that  question  is  to  be  put  immediately, 
without  any  further  debate,  and  in  the  form  in  which  it  then  exists. 
This  operation  of  the  previous  question,  when  decided  affirmatively, 
has  led  to  the  use  of  it  for  the  purpose  of  suppressing  debate  on  a 
principal  question,  and  coming  to  a  vote  upon  it  immediately ;  and 
this  is  ordinarily  the  only  object  of  the  previous  question,  as  made 
use  of  in  the  legislative  assemblies  of  the  United  States.'*  The 
operation  of  a  negative  decision  is  different  in  different  assemblies ; 
in  some,  as  for  example,  in  the  house  of  representatives  of  congress, 
it  operates  to  dispose  of  the  principal  or  main  question  by  suppress- 
ing or  removing  it  from  before  the  house  for  the  day;  but  in  others, 
as  in  the  house  of  representatives  of  Massachusetts,  and  in  the 
house  of  assembly  of  New  York,  (in  the  former  by  usage  only,  and 
in  the  latter  by  a  rule,)  the  effect  of  a  negative  decision  of  the  pre- 
vious question  is  to  leave  the  main  question  under  debate  for  the 
residue  of  the  sitting,  unless  sooner  disposed  of,  by  taldng  the  ques- 
tion, or  in  some  other  manner. 

1  Pari.  Reg.  XXXIX.  192,  193.  mentary  forms,  and  therefore  it  should  not  be 

2  Pari.  Keg.  LV.  641.  favored,  but  restricted  within  as  narrow  limits 

*  Pari.  Reg.  LV.  641.  as   possible.*'     Notwithstanding  this   sugges- 

*  Mr.  Jefferson  (Manual,  §  34)  considers  this  tion,  however,  the  use  of  the  previous  ques- 
extension  of  the  previous  question  as  an  abuse,  tion,  as  above  stated,  has  become  so  firmly 
He  is  of  opinion,  that  "  its  u?es  would  be  as  established,  that  it  cannot  now  \)e  disturbed 
well  answered  by  other  more  simple  parlia-  or  unsettled. 


Chap.  V.]      motions  to  suppress.  —  previous  question.  555 


2.    Of  the   Previous  Question  as  used  by  Legislative  Assemblies 

in  the   United  States. 

1421.  In  the  legislative  assemblies  of  the  United  States,  while 
the  parliamentary  character  of  tliis  motion  has  been  recognized  in 
theory,  as  stated  in  the  preceding  paragi-aphs,  it  has  been  practi- 
cally turned  to  a  very  different  purpose,  and  has  been  used  for 
many  years  past  priucipaUy  for  the  suppres.sion  of  debate,  on  the 
topic  under  discussion.  In  the  earlier  history  of  our  legislative 
assemblies,  and  down  to  the  present  century,  tlie  previous  question 
was  made  use  of  for  its  legitimate  parliamentary  purpose  of  sup- 
pressing those  subjects  upon  which  the  assembly  did  not  wish  to 
come  to  a  direct  vote.  But  while  this  object  could  be  effected  as 
v^ell  by  various  other  motions,  which  were  in  constant  use,  there 
was  one  purpose  equally  if  not  more  desirable,  that  of  stopping 
debate,  which  the  peculiar  character  of  the  motion  for  the  previous 
question  enabled  it  alone  of  all  the  parliamentary  motions  in  use 
to  accomplish.  This  motion  has  accordingly  been  laid  hold  of  and 
used  ahnost  exclusively  for  this  purpose  in  most  of  our  legislative 
bodies  since  the  commencement  of  the  present  century.  But  this 
practice,  though  very  general,  has  not  been  universaL  Thus  the 
previous  question  was  in  common  use  in  the  congress  of  the  con- 
federation, and  from  that  body  it  descended  to  the  two  houses  of 
consress  under  the  constitution ;  but  in  the  two  branches  of  that 
body,  it  has  met  with  a  different  fate ;  in  the  senate  of  the  United 
States,  after  being  used  a  considerable  time  for  its  parliamentary 
purpose,  it  has  been  abolished  altogether  for  many  years,^  while  on 
the  other  hand  in  the  house  of  representatives,  it  has  gradually 
assumed  and  been  adapted  to  its  present  character,  of  a  motion  foi 
stopping  debate. 

1422.  The  parliamentary  form  of  the  motion  has  been  preserved, 
notwithstanding  its  awkwardness,  and  the  apparent  incongruity  of 
requiring  those  who  are  in  its  favor  to  vote  against  it.  In  the 
congress  of  the  confederation,  a  remedy  for  the  inconvenience  seems 
to  have  been  attempted  by  rule  ;  that  body  having  adopted  in  1778, 
among  their  rules  and  orders,  the  following,  namely :  "  The  previous 
question  (that  is,  that  the  main  question  be  not  now  put)  being 

1  The  rales  and  orders  of  the  senate  of  the  previous   question  is  not  among  them.    See 

United  States  contain  a  rule,  prescribing  all  also  J.  of  S.  31st  Cong.  1st  Sess.  482;    Cong, 

the  dilYerent  motions  whieli  may  be  applied  to  Globe,  XV.  553. 
a  subject  under  debate,  but  the  motion  for  the 


556  LEGISLATIVE  ASSEMBLIES.  [PaRT    VI. 

moved,  the  question  from  the  chair  shall  be,  that  those  who  ari»  for 
the  previous  question  say  aye,  and  those  against  it  no,  and  if  there  be 
a  majority  of  ayes,  the  main  question  shall  not  be  then  put,  but 
otherwise  it  shall."  In  the  rules  and  orders  of  the  house  of  represent- 
atives of  the  United  States,  and  the  provision  appears  to  be  copied 
frequently  in  the  rules  and  orders  of  other  legislative  assemblies, 
the  form  of  the  previous  question  is  fixed  as  it  now  prevails  in  par- 
liament. In  this  form,  those  who  are  in  favor  of  the  motion  obtain 
their  object  by  an  affirmative  vote. 

1423.  In  this  country,  the  motion  for  the  previous  question  is 
regulated  in  two  somewhat  different  manners ;  ^  first  by  the  com- 
mon parliamentary  law,  as  stated  in  the  preceding  paragraphs ; 
and  secondly,  by  the  same  law,  as  variously  modified  to  a  greater 
or  less  extent  by  the  rules  of  each  particular  assembly.  The  com- 
mon parliamentary  law  is  the  rule  of  each  assembly,  until  it  adopts 
rules  of  its  own,  and  when  they  are  adopted,  it  prevails  in  aU 
respects  in  which  they  are  deficient.^  In  order  to  make  this  impor- 
tant proceeding  intelligible,  it  is  proposed  in  the  first  place  to 
recapitulate,  briefly,  the  rules  which  govern  this  subject,  when  it  is 
regulated  only  by  the  common  parliamentary  law,  and  secondly  to 
state  more  at  length  the  practice  which  prevails,  in  the  use  of  the 
previous  question,  in  the  house  of  representatives  of  the  United 
States.  The  rules,  which  from  time  to  time  have  been  adopted  in 
this  assembly,  having  been  extensively  copied  into  the  rules  of  other 
assemblies,  it  is  probable,  that  a  statement  of  the  former  will 
embrace  all  the  particulars  in  which  the  practice  of  legislative 
assemblies  in  this  country  is  different  from  the  common  parha- 
mentary  law. 

1424.  According  to  the  common  parliamentary  law,  the  motion 
for  the  previous  question  may  be  made,  to  suppress  any  other  origi- 
nal motion,  but  it  cannot  be  put  upon  an  amendment  or  any  of  the 
merely  subsidiary  motions,  as  to  commit  or  postpone.  It  is  subject 
to  the  same  rules  with  other  motions,  and  is  moved,  seconded,  and 
stated  from  the  chair,  in  the  same  manner.  When  stated  as  a 
question,  it  may  be  debated  like  any  other,  but  the  merits  of  the 
main  question,  are  not  in  strictness  open.  If  decided  in  the  nega- 
tive, the  decision  precludes  the  taking  of  the  same  or  any  similar 
question,  the  same  day ;  if  decided  in  the  affirmative,  the  main,  or 
principal  question  is  then  to  be  immediately  put,  without  any 
further  debate,  alteration,  or  delay. 

1  J.  of  H.  26th  Cong.  1st  Sess.  88;  Eeg.  of         2  Cong.  Globe,  XXIH.  542. 
Deb,  X.  Part  3,  3473 ;  Cong.  Globe,  VIU.  65. 


Chap.  V.]      motions  to  suppress.  —  previous  question.  557 

1425.  The  peculiar  operation  of  this  proceeding,  in  the  lower 
house  of  congress,  depends  principally  upon  the  rule  of  that  body- 
relating  to  the  order  and  precedence  of  motions,  and  upon  the  rules 
relating  to  this  motion  in  particular.  The  latter  will  be  stated  as 
they  occur.  The  former  is  as  follows :  —  "  When  a  question  is  under 
debate,  no  motion  shall  be  received,  but  to  adjourn,  to  lie  on  the 
table,  for  the  previous  question,  to  postpone  to  a  day  certain,  to 
commit  or  amend,  to  postpone  indefinitely ;  \\hich  several  motions 
Bhall  have  precedence  in  the  order  in  which  they  are  arranged." 

1426.  The  word  question,  in  this  rule,  refers  only  to  original 
questions,  and  not  to  questions  of  amendment  ^  or  merely  subsid- 
iary motions  which  may  be  suppressed  by  various  other  means, 
but  to  which  the  previous  question  is  not  applicable ;  and  a  subject 
is  held  to  be  sunicienlly  under  debate  to  come  within  the  operation 
of  the  rule,  when  it  has  been  stated  from  the  chair  as  a  question 
for  the  decision  of  the  house ;  but  a  practice  also  prevails,  which  is 
contrary  both  to  the  spirit  and  letter  of  the  rule ;  this  practice  con- 
sists in  allowing  the  mover  of  an  original  proposition,  to  which  the 
previous  question  is  applicable,  to  accompany  it,  in  the  same 
breath,  and  before  it  is  stated  from  the  chair,  with  a  motion  for  the 
previous  question.  This  anomalous  and  unparliamentary  proceed- 
ing has  been  frequently  called  in  question,  and  as  frequently  sus- 
tained on  the  ground  of  usage  and  convenience.^ 

1427.  The  previous  question  is  put  in  its  parliamentary  form, 
namely,  "  Shall  the  main  question  be  now  put,"  which  is  also 
prescribed  by  a  rule  of  the  house.  It  cannot,  therefore,  be  moved 
or  stated  in  any  other  form ;  nor  does  it  admit  of  any  amendment. 
Parliamentary  usage,  as  well  as  the  rule  above  mentioned,  both 
confine  the  motion  to  the  present  time.^ 

1428.  When  the  previous  question  is  moved,  it  then  becomes 
the  duty  of  the  speaker  to  ascertain  whether  it  is  seconded  or  no+ 
by  the  requisite  number  of  members.-*  This  number,  which  was 
first  fixed,  and  so  remained  for  many  years,  at  one  fifth  of  the 
members  present,  is  now  fixed  at  a  majority  of  those  present.  If 
the  speaker  ascertains  that  the  requisite  number  is  in  favor  of 
putting  the  motion,  and  on  this  question  the  yeas  and  nays  are  not 

»  See  ante,  ^  1414.  operation;  but  the  validity  of.  the  motion  in 

*  See  ante,  \  1284,  note.  this  form  was  not  objected  to.    Cong.  Globe, 

»  JefTersoii's  Manual,  Sec.  XXXIII.    It  ap-  XV.  456. 

pears  that  the  previous  question  has  been  *  Cong.  Globe,  XI.  799. 

moved,  excepting  certain  individuals  from  its 

47* 


558  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

admissible,^  it  then  becomes  the  duty  of  the  speaker  to  take  the 
sense  of  the  house  upon  the  question.  The  number  necessary  to 
second  this  motion  is  attended  with  this  convenience,  that,  inas- 
much as  the  motion  cannot  be  put  unless  a  majority  of  the  m.em- 
bers  present  is  in  its  favor,  there  is  but  little  danger  of  a  negative 
decision  of  the  previous  question  itself.^  When  the  previous  ques- 
tion is  moved,  the  speaker  immediately  proceeds  to  ascertain 
whether  it  is  seconded,  and  if  so,  to  put  it  to  the  house ;  unless  he 
is  interrupted  by  some  question  claiming  precedence,  such,  for 
example,  as  the  motion  to  adjourn,  or  to  lie  on  the  table,  or  to 
reconsider ;  ^  in  which  case  the  proceedings  on  the  previous  question 
are  suspended  altogether,  by  a  decision  of  it  in  the  affirmative,  or 
for  the  time  only  during  which  it  is  pending,  if  decided  in  the  nega- 
tive ;  if  interrupted  by  an  incidental  question,  the  proceedings  on 
the  previous  question  revive,  as  soon  as  the  former  is  disposed  of, 
whether  decided  in  the  affirmative  or  negative.  The  incidental 
motions,  which  most  usually  intervene  to  suspend  proceedings  on 
the  previous  question,  are  for  reconsideration,  which,  it  is  declared, 
by  a  rule  of  the  house  "  shall  have  precedence  of  all  other  questions, 
except  a  motion  to  adjourn."  The  motion  for  the  previous  ques- 
tion, being  moved,  seconded,  and  stated  from  the  chair,  was,  until 
1805,  debatable  within  narrow  limits,  that  is  to  say,  as  to  the  expe- 
diency or  propriety  of  putting  it,  without  opening  the  merits  of  the 
main  question,  but  since  that  year,  debate  has  not  been  allowable 
on  the  previous  question,  and  by  a  rule  more  recently  made, 
"  all  incidental  questions  of  order,  arising  after  a  motion  for 
the  previous  question,  and  pending  such  motion,  shall  be 
decided,  whether  on  appeal  or  otherwise,  without  debate."  The 
prohibition  of  debate  is  so  strictly  observed,  that,  when  the  pre- 
vious question  is  pending,  it  is  not  even  allowable  to  call  for  the 
reading  of  a  document,  relating,  as,  for  example,  the  report  of  a 
committee,^  to  the  principal  question,  and  which  would  otherwise 
come  within  the  rule  as  to  the  reading  of  papers ;  and  the  only 
exception  it  admits  is,  that  where  the  measure  under  consideration 

I  J.  of  H.  19th  Cong.  2d  Sess.  254;  Cong.  a  Cong.  Globe,  VIIL  446,  447;  Same,  XL 

Globe,  XX.  264;  Siime,  XXL  1568.  This  ques-  783. 

tion  cannot  be  reconsidered  by  itself;    Cong.  ^  J.  of  H.  23d  Cong.  1st  Sess.  726;    Same, 

Globe,  IV.  235;  but  is  reconsidered  when  the  27th  Cong.  1st  Sess.  1002;  Same,  29th  Cong. 

motion  for  the  previous  question  is  so;  Cong.  2d  Sess.  547;  Reg.  of  Deb.  X.  Part  4,  4435. 

Globe,  Xn.  38.  See  also  Cong.  Globe,  IV.  206.;  Same,  XIII 

'  It  has  sometimes  happened,  that  the  pre-  107 
vious  question  has  been  seconded  by  a  major- 
ity, but  not  ordered. 


Chap,  v.]      motions  to  suppress. — previous  question. 


559 


is  reported  from  a  committee,  the  member  reporting  Ihe  measure  ia 
allowed  to  open  and  close  the  debate,  according  to  the  rule  in  his 
favor,  notvvithstanding  the  pendency  of  the  previous  question.^ 

1429.  When  the  previous  (juestion  is  called  or  moved,  it,  at  once, 
supersedes  and  cuts  off  all  motions  llien  made,  which  stand  subse- 
quent to  it  on  the  list  above  mentioned,  and  prevents  their  being 
made  in  fulure,  provided  the  motion  is  seconded.  If  there  is  no 
second,  the  motions  then  pending  revive,  or  they  may  be  moved,  as 
before.  If  the  motion  for  ihe  previous  question  is  seconded  by  the 
requisite  number,  it  is  immediately  to  be  put  to  the  house. 

1430.  If  the  previous  question  passes  in  the  negative,  the  effect 
of  the  decision  is  the  postponement  of  the  main  question  from  that 
to  the  next  sitting  day,  or  to  a  day  or  time  when  such  business  is 
again  in  order ;  when  the  subject  again  comes,  or  is  brought  up, 
the  motion  for  the  previous  question  is  still  the  pending  question, 
and  must  be  again  put  to  the  house,  and  so  on  as  often  as  the 
decision  is  in  the  negative.^ 

1431.  The  first  effect  of  a  decision  of  the  previous  question  in 
the  affirmative,  namely,  that  the  main  question  be  now  put,  is,  that 
the  main  question  is  to  be  taken  as  it  then  stands,  without  any 
fiu-ther  amendment,^  debate,^  or  delay,  the  motions  for  w-hich  are 
no  longer  in  order.  This  last  proposition  admits  of  two  exceptions 
in  practice,  which  are  contrary  to  the  spirit  if  not  the  letter  of  the 
rule  first  above  mentioned,  namely,  the  main  question  may  then  be 
further  postponed  by  being  laid  on  the  table,'^  or  by  an  adjourn- 
ment,*^ and  is  immediately  to  be  put  when  the  subject  is  again 
before  the  house,  but  in  no  other  way  can  the  question  be  post- 
poned. 

1432.  The  principal  effect  of  a  decision  of  the  previous  question 
in  the  affirmative  is,  that  the  house  is  thereby  brought  to  a  direct 
vote,  first,  upon  certain  enumerated  motions,  if  then  pending,  and 
secondly,  upon  the  main  or  principal  question.  These  enumerated 
motions  are ;  1.  A  motion  to  commit,  which  may  be  either  to  com- 
mit, or  to  recommit,  and  \\dth  or  without  instructions ;  2.  If  the 

1  Cong.  Globe,  XI.  250.  debated,  after  the  previous  question  had  been 

*  J.  of  H.  27th  Cong.  3d  Sess.  12.  decided  in  the  affirmative. 

«  J.   of  H.   IX.  75;  Same,  26th  Cong.  1st         ^  j.  of  H.  30th  Cong.  1st  Sess.  175;  Cong. 
Sess.  129G.  Globe,  XIII.  332.     See  Cong.  Globe,  IX.  174, 

*  J.  of  H.   VII.  611.      This  was  decided      175. 

In  1811;    the  house  had  previously  decided,  »  Cong.   Globe,  XIII.  349.     In  parliament, 

in  1807  and  again  in  1808,  on  the  former  oc-  an  adjournment  is  admissible  after  the  pre- 

tasion,  reversing  the  decision  of  Mr.  Speaker  vious  question  has  been  affirmed.    May,  R. 

Vamuni,  that  the  main  question  might  be  0.  etc.  124. 


560  LEGISLATIVE   ASSEMBLIES.  [PaRT  V  L 

motion  to  commit  does  not  prevail,  then  amendments  previously 
reported  by  a  committee,  and  pending  amendments,  that  is,  amend- 
ments wliich  have  been  moved  during  the  debate.  Motions  to 
amend  the  amendments  belong  to  the  same  class  of  motions 
with  the  amendments  themselves,  and  are  put  to  the  question 
accordingly.  When  the  question  has  been  put  upon  these  motions, 
or  such  of  them  as  are  pending,  it  is  then  to  be  put  ^  upon  the  main 
question. 

1433.  The  previous  question  being  general  in  its  form,  "  Shall 
the  main  question  be  now  put,"  without  specifying  the  subjects  to 
which  it  is  applicable,  it  often  becomes  important  where  several 
questions  are  connected  with  the  same  subject-matter,  to  know 
what  intermediate  questions  are  cleared  off  by  it,  and  what  is,  in 
point  of  fact,  the  main  question.  Ordinarily  the  first  question  moved 
or  presented  on  a  given  subject  is  the  main  question ;  and  where 
there  are  no  debatable  questions,  there  can  seldom  be  any  doubt  on 
this  subject;  so  when  the  subject  under  consideration  is  one,  which 
passes  through  regular  stages,  the  main  question  is  always  that 
which,  if  it  passes  in  the  affirmative,  will  carry  the  subject  of  it 
forward  to  its  next  regular  stage,  whatever  may  be  the  first  motion 
or  other  question  made  in  reference  to  it.  Thus,  where  a  bill,  having 
been  read  a  second  time,  is  before  the  house  for  consideration,  the 
main  question  is  on  committing  it  to  a  committee  of  the  whole 
house,  if  it  ought  to  be  committed  to  that  committee,  whether  any 
motion  is  made  to  that  effect  or  not,  and  whatever  other  intermediate 
question  there  may  be  pending,  otherwise  the  main  question  is  on 
the  engrossment  and  third  reading  of  the  bill;  so  where  a  bill, 
having  been  engrossed,  and  read  a  third  time,  is  before  the  house 
for  consideration,  the  main  question  is  on  its  passing ;  so  where  a 
bin  having  passed,  the  title  is  announced,  the  main  question  is  on 
agreeing  to  the  title.  In  all  other  cases,  the  first  question  moved  is 
generally  the  main  question ;  these  questions  may  aU  be  divided,  if 
the  same  will  admit  of  division. 

1434.  The  previous  question,  lilce  other  motions,  may  be  mth- 
drawn  by  the  mover,  and  may  be  reconsidered,^  but  it  cannot  be 
withdrawn  after  it  has  been  seconded,  without  the  vote  of  a  majority 
of  the  house  ;'^  and  it  cannot  be  reconsidered  while  it  is  in  the 
course  of  execution,  that  is  to  say,  after  the  house  has  begun  to 


1  J.  of  H.  27th  Cong.  1st  Sess.  244,  245,  246,         «  Cong.  Globe,  XH.  38;  Same,  XXL  881; 
247,  248,  249;  Cong.  Globe,  XX.  582.  Same,  XIIL  501. 

a  J.  of  H.  21st  Cong.  2d  Seas.  252. 


CUAP.    V.J  MOTIONS   TO   SUPPRESS. AMENDMENT.  561 

take,  and  while  it  is  in  the  course  of  taking,  the  dlfTerent  classes  of 
questions  above  mentioned,  all  of  which  collectively  are  sometimes 
said  to  constitute  the  main  question. 

1435.  The  operation  of  the  previous  question  lasts  only  until 
the  questions  above  mentioned,  including  the  main  question,  have 
been  taken,  and  does  not  extend  to  the  next  stage  in  the  progress 
of  the  same  measure.  Thus,  if  a  bill,  which  has  been  read  a 
second  time,  is  under  consideration,  and  the  previous  question  is 
moved,  the  main  question  is  on  ordering  the  bill  to  be  read  a  third 
time,  and  when  that  question  is  taken  and  decided,  the  previous 
question  ceases  to  operate,  even  though  the  bill  should  be  carried 
forward  immediately  through  its  remaining  stages.  If  desired,  the 
previous  question  must  be  renewed  at  every  one  of  the  stages  of 
the  bill.  So,  when  a  motion  to  reconsider  is  taken  under  the  opera- 
tion of  the  previous  question,  and  is  decided  in  the  affirmative,  the 
previous  question  has  no  operation  upon  the  question  to  be  recon- 
sidered ;  if  the  influence  of  the  previous  question  is  desired  on  that 
question,  it  must  be  moved  again. 

1436.  After  the  previous  question  has  been  moved,  the  main 
question  may  be  withdrawn  by  the  mover,  in  the  same  manner  as 
if  the  previous  question  had  not  been  moved,  at  any  time  before  a 
decision  or  amendment,  but  it  cannot  be  modified,  after  the  pre\dous 
question  has  been  decided  in  the  affirmative.^ 


Article  IV.     Amendment. 

1437.  It  has  akeady  been  seen  in  treating  of  the  subject  of 
amendments,  that  this  form  of  proceeding,  unless  restricted  by  a 
special  rule,  may  be  adopted,  not  only  for  the  purpose  of  carrying 
out  and  effecting  the  object  of  a  proposition,  by  improving  the 
terms  in  which  it  is  expressed,  but  also  of  defeating  it,  by  changing 
it  into  a  proposition  of  a  different  character,  or  by  substituting 
another  and  a  different  proposition  in  its  place.  When  an  amend- 
ment of  this  description  is  moved,  it  may  be  regarded  as  a  mo- 
tion to  suppress,  whether  that  be  the  primary  or  principal  object  of 
the  motion  or  not,  because,  if  it  is  agreed  to,  it  is  clear  that  the 
original  or  main  question  is  suppressed  without  any  opinion  being 
expressed  upon  it,  further  than  as  it  may  be  negatived  or  other- 
wise qualified  by  the  proceedings  on  the  amended  question. 
Amendments  of  this  kind  may  be  made  in  any  of  the  forms  by 

»  Cons;.  Globe,  XI.  471. 


C62  LEGISLATIVE    ASSEMBLIES.  [PaRT  VI. 

which  amendments  are  usually  made,  as  by  leaving  out,  by  insert- 
ing, or  adding,  or  by  leaving  out  and  inserting,  according  to  the 
form  of  the  proposition,  and  the  nature  of  Ihe  amendment  pro- 
posed. 

1438.  Amendments  for  the  purpose  of  defeating  and  thus  sup- 
pressing a  motion  are  of  three  kinds, /rs^,  those  by  which  a  proposi- 
tion relating  to  a  different  subject  is  substituted  for  the  one  origi- 
nally moved ;  second,  those  by  which  the  original  proposition  is 
rendered  so  absurd  and  ridiculous,  or  so  changed  in  meaning,  or  so 
impracticable,  that  it  is  at  once  rejected  by  the  votes  of  all  parties ; 
and,  third,  those  by  which  the  original  proposition  is  reversed,  or 
changed  into  its  opposite,  and  in  that  form  adopted. 

1439.  An  example  of  the  first  form  occurs,  when,  on  a  motion 
that  a  particular  order  of  the  day  be  read,  an  amendment  is  pro- 
posed by  leaving  out  all  the  words  of  the  motion  except  the  word 
"  that "  at  the  beginning,  and  substituting  therefor  a  motion  that 
some  other  order  of  the  day  be  read.  Examples  of  the  second 
and  third  forms  have  already  been  given. 

1440.  Where  a  question  was  so  altered  by  amendments,  as  to 
bear  a  sense  different  from  what  the  mover  intended,  the  house  of 
commons  gave  leave,  that  in  this  instance  only,  the  common  form 
of  the  entry  should  be  altered ;  a  memorandum  being  also  made  of 
the  reasons,  in  order  to  prevent  the  proceeding  from  being  drawn 
into  a  precedent,  in  a  case  where  the  same  reasons  should  not 
exist.^ 


CHAPTER   SIXTH. 

OF  THE   ORDER,   SUCCESSION,  AND  PRECEDENCE   OF  MOTIONS. 

1441.  It  is  a  general  rule,  relating  to  parliamentary  proceedings, 
that,  when  a  question  is  regularly  before  the  house,  for  its  consid- 
eration, upon  a  motion  duly  made  and  seconded  and  proposed 
from  the  chair,  that  question  must  be  forthwith  disposed  of,  either 
for  the  time  or  permanently ;  and  that  until  such  disposition  of  it, 
no  other  motion  or  question  can  regularly  be  made  or  arise  so  as 

1  Hatsell,  II.  118. 


Chap.  VI.]  order  of  motions.  563 

to  take  the  place  of  the  former  and  be  first  acted  upon,  unless  it 
is  either,  first^  a  motion  relating  to  and  connected  with  the  preced- 
ing question,  and  intended  for  the  purpose  of  disposing  of  that 
question,  or  of  assisting  the  house  in  its  consideration  ;  or,  secondly, 
a  motion  relating  to  and  connected  with  some  subject  which  is 
deemed  to  be  of  paramount  importance ;  or,  thirdlij,  a  motion  re- 
lating to  the  general  course  and  order  of  proceeding. 

1442.  All  these  different  kinds  of  motions  take  the  place  of  the 
principal  motion  or  main  question,  as  it  is  sometimes  called,  and 
are  to  be  first  put  to  the  question ;  and,  among  themselves,  also, 
there  are  some  which,  in  like  manner,  take  the  place  of  all  the 
others.  Some  of  these  questions  merely  supersede  or  take  the 
place  of  the  principal  question,  until  they  have  been  decided  ;  and, 
when  decided,  whether  affirmatively  or  negatively,  leave  that  ques- 
tion as  before.  Others  of  them  also  supersede  the  principal  ques- 
tion until  they  are  decided ;  and,  when  decided  one  way,  dispose 
of  the  principal  question ;  but,  if  decided  the  other  way,  leave  it 
as  before.  These  several  motions  will  now  be  stated,  and  the  re- 
lation which  they  bear  to  the  principal  question  and  to  one  another 
explained,  in  the  first  three  of  the  succeeding  sections;  to  which  is 
added  ^fourth  concerning  the  order,  succession,  and  precedence  of 
motions  as  estabhshed  by  rule  in  this  country.  A  fifth,  concerning 
the  general  course  and  order  of  business  in  a  legislative  assembly, 
will  conclude  the  first  division  of  this  part. 


Section  I.     Of  Motions  relating  to  and  connected  with  the 

Question  pending. 

1443.  Motions  coming  under  this  head  are  of  two  kinds,  namely, 
first,  subsidiary,  or,  as  they  may  also  be  called,  secondary,  by  which 
terms  are  denol^ed  those  motions  which  are  made  use  of  to  dispose 
of  a  principal  motion  or  question,  either  for  the  time  being,  or 
permanently,  in  the  manner  most  consonant  to  the  wishes  of  the 
house ;  and  second,  by  incidental  motions  or  questions  which  arise 
out  of,  or  occur  in  consequence  of  the  pendency  of,  some  other  ques- 
tion, which,  ^;o  them,  stands  in  the  relation  of,  a  principal  question. 

Article  I.     Subsidiary  Question. 

1444.  The  subsidiary  or  secondary  motions  in  common  use  are 
tlie  following,  namely,  to  amend,  to  commit,  for  the  previous  ques- 


564  LEGISLATIVE  ASSEMBLIES.  [PaET  VI. 

tion,  to  lie  on  the  table,  and  for  postponement,  all  of  which,  except 
the  motion  to  lie  on  the  table,  have  been  previously  considered. 

1445.  Motions  to  amend,  being  previous  in  their  nature  to  the 
motion  or  question  which  it  is  proposed  to  amend,  take  precedence 
of  or  supersede  that  question  ;  because,  in  whatever  form  the  nature 
of  the  amendment  may  require  the  question  to  be  taken,  the  sub- 
stantial question  first  decided  is,  whether  the  motion  in  its  original 
form,  or  as  amended,  shall  be  the  question  before  the  house,  and 
not  whether  the  original  motion  shall  be  adopted. 

1446.  Motions  to  commit,  or  if  the  subject  has  already  been  in 
the  hands  of  a  committee,  to  recommit,  whether  moved  as  amend- 
ments, or  as  independent  motions,  equally  take  precedence  of  the 
motions  to  which  they  are  applied.  In  the  latter  case,  also,  they 
may  be  moved  after  and  take  precedence  of  motions  to  amend ;  ^ 
but  the  motion  to  commit,  if  decided  in  the  negative,  cannot  be 
renewed. 

1447.  Motions  to  postpone,  both  indefinitely  and  to  a  day  certain, 
whether  moved  as  amendments,  or  in  the  form  of  an  adjournment 
of  the  debate,  take  precedence  of  the  motions  to  which  they  relate. 
Motions  to  postpone,  as  weU  as  to  commit,  like  other  motions, 
cannot  be  made  a  second  time.^  The  subject  can  only  be  reached 
again,  if  at  all,  by  a  motion  to  reconsider.^ 

1448.  The  previous  question  also  takes  precedence  of  the  ques- 
tion upon  which  it  is  moved.  This  motion  has  already  been  con- 
sidered, both  according  to  the  common  parliamentary  law,  and  ac- 
cording to  the  usual  practice  upon  it  in  this  country.  In  neither 
case  can  it  be  moved  a  second  time,  in  reference  to  the  same  sub- 
ject. AVhere  reconsideration  is  allowable,  the  motion  for  the  pre- 
vious question  may,  whether  decided  in  the  affirmative  or  negative, 
h€  reconsidered. 

1449.  The  motion  to  lie  on  the  table  is  a  subsidiary  motion, 
which  supersedes  and  disposes  of  the  motion  to  which  it  is  applied 
for  the  time  being.  It  may  specify  the  time,  or  be  expressed  in 
general  terms."^  In  the  former  case,  if  the  motion  prevails,  the 
subject  of  it  is  disposed  of  for  the  time  specified  ;  in  the  latter,  for 
the  day  only  on  which  the  order  is  made.^  This  motion  is  proper 
when  the  assembly  has  something  else  before  it  which  claims  its 
present  attention,  but  is  wilfing  to  reserve  to  itself  the  power  of 

1  Jefferson's  Manual,   Sec.  XXXIIL;  Sco-         *  J.  of  C.  X.  160;  J.  of  H.  VI.  477;  Same 
bell,  46.  Vm.  353;  Ann.  of  Cong.  L  791. 

«  Cong.  Globe,  XVIIL  382,  383.  «  Hans.  (1),  XVII.  318. 

»  Cong.  Globe,  XX.  517. 


ClIAP.    VI.]       SUBSIDIARY   MOTIONS. LIE   ON   THE   TABLE.  565 

proceeding  to  consider  the  subject  at  a  more  convenient  oppor- 
tunity.^ In  general,  whatever  adheres  to  the  subject  of  this 
motion,  goes  on  the  table  with  it,  as,  for  example,  where  a  motion 
to  amend  is  ordered  to  lie  on  the  table,  the  subject,  which  it  is 
propor^ed  to  amend,  goes  there  with  it.  But  this  rule  does  not 
apply  to  propositions  which  are  independent  of  ihe  motion  laid  on 
the  table,  though  connected  with  it ;  thus,  where  a  motion  to  amend 
the  journal,-  or  the  question  on  the  reception  of  a  petition,'^  or  a 
motion  to  reconsider"*  a  vote  by  which  a  bill  has  been  passed 
through  one  of  its  stages,  or  an  appeal  from  the  decision  of  the 
presiding  officer  on  a  question  of  ordrr,  is  laid  on  the  table, 
neither  the  journal,  nor  the  petition,  nor  the  bill,  nor  the  question  of 
order,  goes  on  the  table  with  the  motion  to  amend,  or  to  reconsider, 
or  the  appeal ;  the  journal  stands  as  if  no  motion  to  correct  it  had 
been  made ;  the  bill  may  pass  through  its  remaining  stages ;  the 
petition  is  not  thereby  received ;  and  the  decision  of  the  presiding  offi- 
cer stands  as  the  decision  of  the  house.  According  to  the  practice 
of  legislative  assemblies  in  thia  country,  a  motion  laid  on  the  table 
may  be  proceeded  with  at  any  time,  even  on  the  same  day  on 
which  the  order  is  made. 

1450.  A  distinction  is  to  be  made  between  the  speaker's  table 
and  the  table  of  the  house.  The  latter  only  is  the  subject  of  the 
order  in  question,  to  lie  on  the  table.  Whatever  is  under  the  pres- 
ent consideration  of  the  assembly,  or  may  be  so,  whenever  it  is 
proceeded  with,  is  on  the  speaker's  table.^ 

1451.  This  motion,  if  decided  in  the  negative,  may  be  renewed, 
whenever  any  new  business  intervenes,'^  or  when  the  motion  is,  in 
the  mean  time,  so  changed,  by  modification  or  amendment,  as  to 
become  a  different  one ; '  if  decided  in  the  affirmative,  the  subject 
is  thereby  disposed  of,  for  the  time  being,  and  can  only  be  brought 
before  the  assembly  again  by  moving  to  rescind  or  discharge,  or  to 
proceed  with  the  consideration  of  the  subject,  or  by  motion  to  re- 
consider. 

1452.  All  these  motions,  except  the  motion  to  adjourn  the  debate, 
being  equal  among  themselves,  when  any  one  of  them  is  regularly 
moved,  seconded,  and  proposed  from  the  chair,  no  one  of  the  others 

1  Jcflerson's  Manual,  Sec.  XXXIIL  ^  Cong.  Globe,  XXI.  1019. 

«  J.  ofil.  26th  Conjr.  1st  Sess.  28.  «  J.  of  H.  32d  Cong.  2d  Sess.  234;   Reg.   of 

3  Cong.  Glol)e,  IV.  7980;  Same,  VIL  47.  Deb.  XII.  Part  2,  2179;  Cfong.  Globe,  VI.  355; 

*  Sec  tbe  journals  of  the  house  of  represent-  Same,  XII.  387;  Same,  XV.  479. 

fttives  in  congi-ess,  passim.    But  see   Cong.  ^  J.  of  H.  30th  Cong.  1st  Sess.  250,  251,  252. 
Globe,  III.  244. 

48 


566  LEGISLATIVE  ASSEMBLIES.  [PaRT   VL 

can  be  regularly  moved  until  the  first  is  disposed  of  or  withdrawn. 
The  motion  to  adjourn  the  debate  may  be  made  while  any  of  the 
o:hers  is  pending;  and,  if  resolved  in  the  affirmative,  the  main 
(juestion  and  all  other  pending  questions  connected  with  it  are  ad- 
journed accordingly.  The  same  result  as  to  pending  motions  fol- 
lows from  a  postponement  in  any  form,  whether  it  takes  place 
specifically  or  in  consequence  of  some  other  proceeding,  as,  for  ex- 
ample, an  adjournment  of  the  assembly  or  lapse  of  time. 

1453.  It  is  a  general  rule,  with  certain  exceptions  which  will  be 
immediately  mentioned,  that  subsidiary  or  secondary  motions  can- 
not be  applied  to  one  another;  as,  for  example,  if  a  motion  to 
amend,  commit,  or  postpone  a  principal  question  is  moved,  the 
previous  question  cannot  be  made  use  of  to  suppress  that  motion ; 
or,  if  the  previous  question  is  moved,  it  cannot  be  moved  to  post- 
pone, commit,  or  amend,  that  motion.^  The  reasons  for  this  rule 
are  ;  1.  It  would  be  absurd  to  separate  the  appendage  from  its 
principal ;  2.  It  would  be  a  piling  of  questions  one  on  another, 
which,  to  avoid  embarrassment,  is  not  allowed ;  3.  The  same  re- 
sult may  be  reached  more  simply  by  negativing  the  motion  which 
it  is  thus  attempted  to  dispose  of  by  another  secondary  motion  ; 
and,  4.  None  of  the  reasons,  which  sometimes  render  it  desirable  to 
get  rid  of  a  question  without  deciding  it,  can  ever  apply  to  any  of 
these  merely  formal  motions.^ 

1454.  The  exceptions  to  the  rule  are,  that  motions  to  commit, 
amend,  and  postpone,  may  be  amended,  for  the  reason,  (as  stated 
by  Mr.  Jefferson,)  "  that  the  useful  character  of  amendment  gives 
it  a  privilege  of  attaching  itself  to  a  secondary  and  privileged  mo- 
tion ; "  and,  consequently,  where  such  effect  can  be  obtained  by 
means  of  an  amendment,  any  of  the  preceding  motions  may  be  dis- 
posed of  by  way  of  amendment.  A  motion  to  commit  may  be 
amended  by  the  addition  of  instructions  ;  motions  to  amend  may  be 
variously  amended,  and  motions  for  postponement  may  be  amended 


1  It  has  accordingly  been  held  in  the  lower  Cong.  2d  Sess.  252,)  or  a  motion  to  postpone 

house  of  congress,  that  a  motion  to  lie  on  the  to  a  day  certain,  (Reg.  of  Deb.  IX.  Part  2, 

table,  or  to  reconsider  an  order  to  lie  on  the  1760,)   or    indefinitely,   (Cong.    Globe,    XXI. 

table,  (J.  of  H.  27th  Cong.  3d  Sess.  334;  Cong.  1322,  1678,)  cannot  be  ordered  to  lie  on  the 

Globe,  XII.  256;   Same,  XXIII.  749,)  cannot  table;  that  a  motion  for  the  previous  question 

be  suppressed  by  a  motion  to  lie  on  the  table,  cannot  be  applied  to  a  motion  to  postpone  in- 

(.1.   of  H.   27th   Cong.   3d    Sess.   211;  Cong,  definitely  (Reg.  of  Deb.  IX.  Part  2,   1757) 

Glohe,   XI.   452;)   that  a  motion  to  commit  and  that  a  motion  to  lie  on  the  table  cannot 

cannot  be  suppressed  by  a  motion  to  post-  be  postponed,  (Cong.  Globe,  XV.   1080,)  or 

pone  indefinitely,  (J.  of  H.  VII.  75,)  that  a  amended,  (Cong.  Globe,  IV.  80). 

motion  for  the  previous  question,  (J.  of  H.  29th  ^  Jefferson's  Manual,  Sec.  XXXIII. 


CUAP.    VI.]      INCIDENTAL   QUESTIONS. QUESTIONS   OP   ORDER,  567 

as  to  one  day  instead  of  another,  or  to  a  special,  instead  of  an 
indefinite  time.^ 

1455.  The  previous  question,  however,  cannot  be  amended ;  the 
nature  of  it  not  admitting  of  any  change.  Parliamentary  usage 
has  fixed  its  form,  Shall  the  main  questiun  be  nov)  put  ?  that  is,  at 
this  present  time  ;  and,  as  the  present  time  is  but  a  single  point,  it 
cannot  admit  of  any  modification ;  and  to  change  it  to  the  next 
day  or  any  other  moment  is  without  example,  as  it  would  be  with- 
out utility  .2 

Article  II.    Incidental  Questions. 

1456.  Incidental  questions  are  those  which  arise  out  of  and  are 
connected  with  (though  they  do  not  necessarily  dispose  of)  other 
questions,  to  which  they  relat-e,  and  which,  for  the  time  being,  they 
supersede.  It  would,  of  course,  therefore,  be  difficult,  beforehand, 
to  enumerate  all  the  motions  of  this  description,  which  might  arise 
under  any  circumstances.  The  following,  however,  are  those  which 
most  usually  occur,  Jirst,  questions  of  order ;  second,  questions  for 
reading  papers;  third,  questions  on  leave  to  withdiaw  motions; 
fourth,  questions  on  suspending  or  dispensing  with  a  rule ;  and 
Jifth,  that  the  pending  question,  when  taken,  be  taken  by  yeas  and 
nays. 

•  1.    Questions  of  Order. 

1457.  It  is  the  duty  of  the  speaker  of  the  house  of  commons  to 
enforce  the  rules  and  orders  of  the  house,  in  aU  its  proceedings,  and 
this  without  question,  debate,  or  delay,  in  all  cases,  in  which  the 
breach  of  order,  or  the  departure  from  rules,  is  manifest.  It  is  also 
the  right  of  every  member,  taking  notice  of  a  breach  of  order,  to 
insist  upon  the  enforcement  of  it  in  the  same  manner.  In  the  house 
of  lords,  the  lord  chancellor,  or  speaker,  has  no  more  power,  in  this 
respect,  than  any  other  peer. 

1458.  But,  though  no  question  can  be  made  as  to  the  enforce- 
ment of  the  rules  and  orders,  when  there  is  a  breach  or  manifest 
departure  from  them,  so  long  as  any  member  insists  upon  their 
enforcement ;  yet  questions  may  and  do  frequently  arise,  as  to  the 
fact  of  there  being  a  breach  of  order,  or  a  violation  of  the  rules,  in  a 

>  Jefferson's  Manual,  Sec.  XXXIH  »  Jefferson's  Manual,  Sec.  XXXIIL 


568  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI 

particular  proceeding,  or  as  to  what  the  rule  or  order  is,  or  what 
the  form  of  proceeding  shall  be,  in  a  particular  case;  and  these 
questions  must  be  decided,  before  a  case  can  arise  for  the  enforce- 
ment of  the  rules.  Questions  of  this  kind  are  denominated  ques- 
tions of  order. 

1459.  When  any  question  of  this  nature  arises,  in  the  course  of 
any  other  proceeding,  it  necessarily  supersedes  the  further  considera- 
tion of  that  subject,  until  it  is  itself  disposed  of;  ^  then  the  original 
motion  or  proceeding  revives,  and  resumes  its  former  position, 
unless  it  has  been  itself  disposed  of  by  the  question  of  order.^ 

1460.  The  presiding  officers  of  the  American  legislative  assem- 
blies, whether  members  or  not  of  the  bodies  over  which  they  preside, 
have  the  same  authority  in  this  respect  with  the  speaker  of  the 
house  of  commons;  and  it  is  usually  made  their  duty,  also,  by  a 
special  rule  of  their  respective  assemblies,  to  decide  all  questions  of 
order,  subject  to  an  appeal  to  the  assembly. 

1461.  In  parliament  the  speaker's  decision  is  not  conclusive ;  but 
a  question  may  be  framed  contrary  thereto  by  any  two  members, 
one  to  move  and  the  other  to  second  his  motion,  for  the  decision  of 
the  house.^  This  is  a  very  uncommon  proceeding,^  but  until  it 
takes  place,  the  speaker's  decision  cannot  be  called  in  question  or 
departed  from ;  it  stands  as  the  judgment  of  the  house.  In  our 
assemblies,  it  is  a  common  proceeding,  and  bears  the  name  of  an 
appeal.  The  question  is  not  taken,  however,  on  sustaining  or 
reversing  the  decision  of  the  chair,  which  is  entirely  abrogated  by 
the  appeal,  but  whether  the  decision  of  the  chair  shall  stand  as  the 
judgment  of  the  house.^  This  is  the  substance  of  the  question, 
which  is  always  put  upon  an  appeal,  though  the  form  is  sometimes 
champed. 

1462.  Questions  of  order,  for  the  decision  of  the  presiding  officer, 
arise  in  two  different  manners,  both  relating  to  the  business  before 
the  assembly,  either  as  to  its  general  course,  or  to  the  particular 
matter  then  under  consideration.  The  presiding  officer,  sometimes, 
and  especially  in  regard  to  the  general  course  of  business,  volun- 
tarily expresses  a  statement  of  his  opinion ;  and,  sometimes,  he 
does  so,  more  frequently,  perhaps,  in  relation  to  the  particular  matter 
then  under  consideration,  at  the  suggestion  of  an  individual  mem- 
ber.    Sometimes,  also,  especially  in  doubtful  matters,  either  undei 

1  Cong.  Globe,  X.  297.  ^  Comm.  Jour.  I.  369. 

2  See  an  example,  Comm.  Jour.  XXXII.         *  Appendix,  XIII. 

834.  *  J.  of  C.  X.  45,  48;  356,  357. 


Chap.  VL]     incidental  questions.  —  qtj-estions  of  order.        569 

his  general  aulhority,^  or  in  virtue  of  a  special  rnle,^  he  puts  ques- 
tions of  order,  in  ihe  first  instance,  directly  to  the  house. 

1463.  It  then  becomes  important,  in  certain  cases,  especially 
when  ihe  question  arises  on  the  suggestion  of  an  individual  mem- 
ber, to  determine  wliat  are  questions  of  order,  for  ihe  decision  of 
the  presiding  officer;  and,  herein,  no  other  general  rule  can  be  laid 
down,  than  that  a  question  of  order,  always,  whatever  other  effect  it 
may  have,  is  one  which  affects  the  present  state  of  the  business  of 
the  assembly ;  but  the  present  effect  of  a  motion,  as  to  its  subject- 
matter;'^  or  its  prospective  operation,  as  a  matter  of  order,  on  the 
business  of  the  house  ;  ^  or  whether  the  assemljly  is  dissolved  or  not 
by  the  lapse  of  time;^  is  not  a  question  of  order.  The  presiding 
officer's  opinion,  on  a  pouit  of  order,  may  be  revised  and  corrected, 
at  any  time  when  the  subject  is  before  the  assembly ;  '^  but  it  is 
irregular  to  raise  one  point  of  order  upon  another,  so  that  there  may 
be  two  qiiestions  of  order  pending  at  once." 

1464.  When,  therefore,  the  presiding  officer  of  an  assembly  is 
called  upon  by  any  individual  member  (and  no  seconder  is  neces- 
sary) to  give  his  opinion  as  to  a  matter  of  order  arising,  or  which 
the  member  supposes  to  have  arisen,  as  well  as  in  those  cases  in 
which  the  presiding  officer  volunteers  his  opinion,  he  gives  it  at 
once,  either  with  or  without  reasons,  as  he  thinks  proper,  and  pro- 
ceeds to  direct  the  assembly  accordingly.^  Before,  however,  giving 
his  opinion,  the  presiding  officer  may  take  the  opinions  of  other 
members,  at  his  pleasure,  not  in  the  shape  of  debate,  on  the  ques- 
tion ;  but  when  he  rises  up  to  speak  aU  the  other  members  must  at 
once  resume  their  seats  and  be  silent.'^  In  the  opinion  given  by  the 
presiding  officer,  he  may  either  decfine  deciding  the  point  of  order, 
as,  for  example,  for  some  of  the  reasons  above  mentioned,i°  or  he 
may  decide  it,  either  in  the  affirmative  or  negative.  If  the  opinion 
is  acquiesced  in,  it  stands  as  the  judgment  of  the  assembly,  and  is 
to  be  enforced  or  executed  accordingly;  but  any  member,  who 
obtains  the  floor  for  that  purpose,^^  may  appeal  from  it,  and  if  the 


»  Mny,  264;  Cong.  Globe,  VIII.  226.  32d  Cong.  1st  Sess.  611;   Reg.   of  Deb.  IV. 

«  In  the  senate  of  the  United  States,  there  Part  2,  2291;  Same,  Part  1,5;  Cong.  Globe, 

is  a  rule  that  "  the^  president  may  call  for  the  XVII.  253,  290. 

sense  of  the  senate   on   any  question  what-  '  Reg.  of  Deb.  Vlll.   Part  3,  3S74;  Cong, 

ever."  Globe,  VIII.  65. 

8  J.  of  H.   32d   Cong.   1st  Sess.  611,  679;  »  Keg.  of  Deb.  IV.  Part  2,  2294. 

Cong.  Globe,  XX.  632.  »  May,  264. 

*  Cong.  Globe,  XXII.  1749.  i»  J.  of  H.  32d  Cong.  1st  Sess.  611, 
»  Reg!  of  Dob.  XI.  Part  2,  1658.  »  Cong.  Globe,  IV.  221. 

•  J.  of  II.  31st  Cong.  1st  Sess.  1404;  Same, 

48* 


570  LEGISLATIVE   ASSEMBLIES.  [PaET   VL 

appeal  is  seconded  as  it  must  generally  be,^  and  allowed,  it  then 
entirely  abrogates  the  decision  of  the  presiding  officer,  and  refers 
the  point  of  order  to  the  decision  of  the  assembly  itself,  whose 
decision  thereof  furnishes  the  rule  to  be  pursued  afterwards.^ 

1465.  The  opinion  of  the  presiding  officer,  on  a  point  of  order, 
is  considered  as  acquiesced  in,  and  an  appeal  therefrom  not  season- 
ably taken,  when  any  parliamentary  proceeding-^  is  allowed  to  take 
place  afterwards ;  as,  for  example,  where  the  mover  of  an  amend- 
ment, which  was  adjudged  to  be  out  of  order,  not  knowing  of  the 
decision,  suifered  another  member  to  obtain  the  floor  and  to  address 
the  assembly,  for  some  moments,  before  he  claimed  his  appeal ;  ^ 
and,  so,  where  the  clerk  has  commenced  calling  the  roll,  and  five 
members  have  answered  to  their  names,  it  was  held  to  be  too  late 
to  question  the  decision  of  the  presiding  officer  on  a  point  of 
order.'^ 

1466.  An  appeal  may  involve  an  inquiry  of  fact,  that  is,  the  rule 
being  clear,  whether  a  case  exists  within  it,  or  of  law,  that  is,  the 
fact  being  indisputable,  whether  it  comes  within  any  such  rule  as 
is  alleged ;  '^  it  may  be  placed  under  the  operation  of  the  previous 
question ; '  and  the  question  thereon  may  be  taken  by  yeas  and 
nays,^  and  divided  if  divisible.^  An  appeal  may  be  withdrawn,^'' 
at  the  pleasure  of  the  mover,  and,  being  withdrawn,  may  be  renewed 
by  him  or  some  other  member ;  and  the  decision  thereon  may  be 
reconsidered.  An  appeal  may  be  debated  ^^  as  a  question  before  the 
assembly ;  although  the  proceeding  out  of  which  it  arises  is  not 
debatable ;  ^^  and  the  motion,  which  gives  rise  to  it  may  be  modi- 
fied,'^ or  withdrawn ;  ^^  in  which  latter  case,  the  appeal,  of  course, 
falls. 

1467.  K  an  adjournment  of  the  assembly  takes  place,  Avhile  an 
appeal  is  pending,  the  appeal  is  not  thereby  suppressed,  but  goes 
over  to  the  next  day,  with  the  business  to  which  it  belongs,  as  the 
unfinished  business  of  the  day,  on  which  the  adjournment  takes 
place.'-^     So,  where  the  hour,''^  or  the  day,^^  on  which  the  business, 

1  This  will  depend,  of  course,  upon  the  rules         'o  j.  ^f  jj.  yu.  70 ;  Same,  2Ctli  Cong.   1st 
of  each  assembly.  Sess.  126 ;  Reg.  of  Deb.  XI.  Part  1,  965. 

2  Cong.  Globe,  IIL  315 ;  Same,  VIIL  246.  "  Reg.  of  Deb.  XIL  Part  2,  2536. 
«  Cong.  Globe,  XV.  178.                                           12  Reg.  of  Deb.  XII.  Part^2,  1970. 

*  Cong.  Globe,  XII.  243.  w  Cong.  Globe,  XV.  359.* 

»  Cong.  Globe,  XXI.  1749.  "  Reg  of  Deb.  VII.  404;  Cong.  Globe,  XIII. 

•  Cong.  Globe,  XVIII.  941.  256. 

»  Cong.  Globe,  VIII.  247;  Same,  X.  154.  i"*  J.  of  H.  IV.  152;  Same,  2Gth  Cong.  Ist 

8  Cong.  Globe,  XIV.  369.  Sess.  673. 

9  J.  of  H.  IV.  152.  i«  Cong.  Globe,  X.  301. 

"  Cong.  Globe,  IX.  124. 


CUAP.   VI.]       INCIDENTAL   QUESTIONS. QUESTIONS    OF   ORDER.  571 

giving  rise  to  an  appeal,  is  in  order,  expires,  the  appeal  goes  over, 
with  that  business,  to  the  next  hour  or  day,  on  which  that  business 
is  in  order ;  a  similar  result  follows  from  the  postponement,  in  any 
form,  of  the  subject  to  which  an  appeal  is  attached;  and,  when 
taken  in  committee  of  the  whole,  if  the  committee  rises  and  sils 
again  during  the  pendency  of  the  appeal,  the  latter  revives,  when- 
ever the  business,  to  which  it  belongs,  is  again  brought  forward  in 
the  committee.^  The  (question  on  an  appeal  may  be  taken  directly  ; 
or  the  appeal,  if  the  uiotion  for  that  purpose  is  not  first  withdrawii,- 
may  be  ordered  to  lie  on  the  table.'^  In  this  latter  event  the  motion 
is  an  independent  one,  and  if  it  prevails,  nothing  but  the  appeal 
itself  wiU  be  laid  upon  the  table,  and  the  matter,  whatever  it  may 
be,  which  gives  rise  to  it,  proceeds  as  before.^ 

1468.  It  may  be  urged,  as  an  objection,  against  an  appeal,  on 
the  ground  of  order,  that  it  presents  the  same  question,  which  has 
already  been  decided  by  the  assembly,  and  acquiesced  in  as  a  point  of 
order.  In  these  cases,  the  presiding  officer,  especially  when  the  iden- 
tity of  the  question  is  not  apparent,  or  when  the  question  is  a  new 
one,  generally  overrules  the  objection,  on  the  gi'ound,  that,  being  a 
matter  of  opinion  only,  about  which  members  may  differ,  it  will  be 
best  to  submit  the  question  at  once  to  the  assembly.'^  But  tw^o 
different  questions  of  order,  in  reference  to  the  same  general  subject, 
may  be  brought  forward  consecutively ;  ^  and  although  the  same 
question  cannot  regularly  be  made  a  second  time,  yet  if  a  motion 
is  objected  to  as  not  in  order,  on  one  ground,  which  is  overruled 
by  the  presiding  officer,  it  is  then  competent  to  the  same  or  another 
member,  to  object  to  the  motion  as  not  in  order,  on  a  different 
ground."  It  is,  of  course,  immaterial,  in  this  respect,  whether  the 
decision  is  made  by  the  presiding  officer  alone,  and  acquiesced  in, 
or  by  the  assembly  on  appeal;  and  whether  the  objection  is  taken 
before  the  presiding  officer,  or  on  appeal.^ 

1469.  It  may  be  urged,  in  the  second  place,  as  an  objection,  in 
point  of  order,  against  an  appeal,  that  there  is  another  appeal  pend- 
ing, and  under  consideration,  in  reference  to  the  same  general 
subject,  though  not  to  the  same  point  of  order  ;^  but  if  the  first 


1  Cong.  Globe,  XV.  359.  "  Cong.  Globe,  VIIT.  247,  396. 

s  Cong.  Globe,  VIII.  246,  247.  «  Cong.  Globe,  X.  154. 

8  Cong.  Globe,  X.  301;  Same,  XI.  133;  J.         '  J.  of  H.  32d  Cong.  1st  Sess.  146,  786. 
Df  H.  24th  Cong.  1st  Sess.  885.  »  Cong.  Globe,  XIV.  369. 

*  J.  of  H.  2Gth  Cong.  1st  Sess.  630;  Cong.         »  Reg.  of  Deb.  IV.  Part  1,  5;  Cong.  Globe, 

Globe,  VIII.  246.  XVII.  290;  Same.  XXI.  94. 


572  LEGISLATIVE  ASSEMBLIES.  [PaRT    VL 

appeal  is  disposed  of,  as  for  example,  by  being  laid  on  the  table,  the 
second  is  in  order.^ 

1470.  A  third  objection,  in  point  of  order,  to  an  appeal,  is,  that  it 
is  raised  on,  or  grows  out  of,  another  appeal  ;2  that  is  to  say,  if, 
during  the  consideration  of  a  point  of  order  on  appeal,  a  question 
of  order  arises,  the  decision  of  the  latter  by  the  presiding  officer 
must  be  submitted  to  without  appeal ;  for  appeals  cannot  be  piled 
upon  one  another,  any  more  than  there  can  be  a  division  upon  a 
division.  In  this  case,  the  second  question  of  order  cannot  be 
made  the  subject  of  an  appeal,  by  the  withdrawal-^  or  other  dis- 
position of  the  first. 

1471.  The  presiding  officer,  if  there  is  any  rule  of  the  assembly 
to  that  effect,  may  require  an  appeal  to  be  reduced  to  writing,  and 
submitted  to  him  in  that  form.^  The  question  is  stated  for  the 
determination  of  the  assembly  in  the  same  manner  with  the  ques- 
tion on  any  other  motion ;  and,  on  this  question,  if  debatable,  the 
presiding  officer  may  participate  in  the  debate  Uke  any  other  mem- 
ber. Where  an  appeal  is  not  debatable  the  presiding  officer  is  only 
at  liberty  to  give  his  opinion  of  the  point  of  order,  submitted  on 
the  appeal,  with  the  reasons  on  which  it  is  founded.-^  In  aU  cases, 
he  may  decide  the  question,  and  if  he  pleases  may  sustain  hia 
own  decision  by  means  of  his  casting  or  other  vote.^ 

2.    Reading  Papers. 

1472.  It  is,  for  obvious  reasons,  a  general  rule,  that,  where  papers 
are  laid  before  the  house  for  their  consideration  in  reference  to 
which  a  motion  is  made,  any  member  has  a  right  to  have  such 
papers  read  through  once  "'  at  the  table,  before  he  can  be  compelled 

1  J.  of  H.  24th  Cong.  1st  Sess.  902.  the  decision  of  the  presiding  officer,  and  that 

*  Cong.  Globe,  X.  154;  Same,  XVII.  573.  in  the  case  of  a  tie  vote,  the  decision  is  sus- 

*  Cong.  Globe,  XVII.  573.  tained.     But  unless  there  is  some  custom  in 

*  Cong.  Globe,  XI.  176.  that   body   (there  is   no  rule  to   that   effect) 

*  Cong.  Globe,  XXI.  832;  Same,  XXIII.  512.  which  sanctions  this  departure  from  the  ordi- 

*  J.  of  II.  I.  229 ;  Reg.  of  Deb.  VIII.  Part  3,  nary  rule,  it  is  difficult  to  see  upon  what 
3295.  In  the  senate  of  the  United  States,  in  ground  it  rests.  The  same  principle  has  been 
which  the  question  on  an  appeal  is  stated  in  recently  asserted,  and  apparently  al);nidoned, 
common  form,  "  Shall  the  opinion  of  the  chair  in  the  house  of  representatives  of  the  United 
stand  as  the  judgment  of  the  house,"  and  the  States.  Cong.  Globe,  XXI.  1607,  1608. 
principle  is  admitted  and  practically  applied,  '  J.  of  H.  25tli  Cong.  2d  Sess.  943.  The 
that  where  there  is  an  equality  of  voices  the  extent,  to  which  this  rule  may  be  carried, 
decision  is  in  the  negative,  it  is  said  (J.  of  S.  ivas  forcibly  illustrated  by  a  recent  proceed- 
26th  Cong.  1st  Sess.  523;  .1.  of  S.  32d  Cong,  ing  in  the  house  of  representatives  at  Wash- 
iSt  Sess.  651;)  that  on  an  appeal,  a  majority  ington.  Amotion  being  under  consid-eration 
of  the  votes  is  necessary  in  order  to  reverse  in  that  body,  to  reconsider  a  vote,  whereby  it 


Chap   VL]     incidental  questions.  —  questions  of  order.        573 

to  give  his  vote  upon  them,i  but,  when  they  have  once  been  read  to 
the  house,  they  are  then,  like  every  other  paper  that  belongs  to  the 
house,  to  be  moved  for  to  be  read ;  and,  if  the  matter  is  disputed, 
it  must  be  decided  by  laking  Ihe  sense  of  the  house.^  In  regard  to 
papers  of  this  description,  tiierefore,  if  any  member  insists  upon 
tlieir  being  read,  and  any  other  member  wishes  to  have  the  reading 
dispensed  with,  or  suspended  if  it  has  already  been  commenced,  the 
latter  must  first  move  a  suspension  of  the  rules,  to  enable  him  to 
move  that  the  reading  be  dispensed  with  or  suspended,  and  if  a 
suspension  takes  place,  then  to  make  a  motion  accordingly  for  the 
purpose  in  view.'^ 

1473.  Besides  papers  of  the  description  above  referred  to,  which, 
in  fact,  make  a  part  of  the  question  before  the  house,  there  are  other 
documents  of  a  public  nature,  accessible  to  everybody,  as  acts  of 
parliament,  journals  of  the  house,  proclamations  and  papers,  pri- 
vate or  official,  received  or  ordered  by  the  house,^  etc.,  which  mem- 
bers desire  to  have  read  for  the  information  of  the  house,  either 
with  reference  to  some  question  then  pending,  or  for  the  purpose  of 
laying  a  foundation  for  further  proceedings;  and,  in  all  such  cases, 
as  well  as  in  reference  to  papers,  involved  in  a  pending  question, 
which  have  already  been  once  read,  the  reading  must  be  on  motion 
and  vote. 

1474.  The  reading  of  a  paper,  not  regularly  before  the  assembly, 
which  sometimes  takes  place  for  its  information  only,  is  in  conse- 
quence of  general  consent,  and  not  in  virtue  of  the  rule  above  men- 
tioned.'' Nor  is  the  reading  of  a  paper  in  order  after  the  previous 
question  has  been  moved.^ 

1475.  The  practice  of  the  house  of  commons,  in  reference  to  the 
reading  of  papers,  not  coming  within  the  rule  above  laid  down,  is, 
that  if  any  member  moves  for  an  act  of  parliament,  a  journal  or 
paper,  to  be  read,  which  the  house  sees  is  reaUy  for  information, 
and  not  for  affected  delay,  and  no  member  objects  to  it,  the  speaker 
duects  it  to  be  read  without  putting  a  question ;  but,  if  any  mem- 
accepted,  and  ordered  to  be  deported  in  the  *  J.  of  H.  32d  Cong.  1st  Sess.  405, 1117. 
library,  a  copy  of  Rajnnond's  Political  Econo-  *  This  class  of  papers  being  equally  in  the 
my,  a  member  threatened  if  his  colleague  was  possession  of  the  house,  for  its  consideration, 
not  suffered  to  proceed,  to  call  for  the  reading  with  those  mentioned  in  the  preceding  para- 
of  the  entire  volume,  and  his  right  to  have  the  graph,  the  distinction  between  them  is,  that 
same  read  by  the  clerk,  at  the  table,  was  ad-  some  motion  is  made  in  reference  to  the 
mitted  by  the  speaker.     The  reading  did  not      latter. 

take  place.    Cong.  Globe,  VIII.  483.  *  Cong.  Globe,  YIH.  210;   Same,  XI.  162; 

1  Reg.  of  Deb.  X.  Part  3, 2S70;  Cong.  Globe,  Same,  XIII.  61. 

VI.  329;  Same,  VIII.  494;  Siune,  XI.' 248.  •  Cong.  Globe,  XIH.  874. 

«  Hatsell,  II.  164,  165. 


574  LEGISLATIVE  ASSEMBLIES.  [PaRT  VL 

ber  objects  to  it,  the  speaker  must  take  the  sense  of  the  house  by 
a  question,  upon  this  difference  of  opinion,  as  upon  every  other ;  no 
member  having  a  right,  as  has  been  sometimes  supposed,  upon  his 
own  motion,  only,  to  insist  upon  having  any  such  paper  read,  wa1h- 
out  the  house  having  any  power  to  interfere  to  prevent  him.^ 

1476.  In  all  cases,  where  the  reading  of  a  paper  is  the  subject  of 
a  motion,  as  it  may  be,  when  some  other  question  is  pending,  the 
former  motion  takes  precedence  of  the  principal  question  to  which 
it  is  incidental,  and  must  first  be  decided.^ 


3.    Withdrawal  of  a  Motion. 

1477.  It  has  already  been  seen,  in  another  part  of  this  treatise, 
that  when  a  motion  is  regularly  made,  seconded,  and  proposed  from 
the  chair,  it  is  then  in  the  possession  of  the  house,  and  cannot  be 
withdrawn  by  the  mover,  except  in  virtue  of  a  special  rule,  without 
the  leave  of  the  house,  first  obtained  for  the  purpose,  and  for  which 
the  unanimous  consent  of  the  house  is  necessary.  Hence,  when 
the  mover  of  a  question  wishes  to  modify  it,  or  to  substitute  a 
different  one  in  its  place,  or  to  prevent  the  house  from  coming  to  a 
decision  upon  it,  this  can  only  be  done  by  a  motion  for  leave  to 
withdraw  it,  and  the  sense  of  the  house  being  ascertained  by  a 
question.  If  there  is  no  rule  which  authorizes  a  member  to  with- 
draw or  modify  his  motion,  and  objection  is  made  to  its  being  done 
by  general  consent,  the  member  may  then  move  a  suspension  of  the 
rules  to  enable  him  to  withdraw  or  otherwise  dispose  of  his  motion. 
If  he  has  a  right  to  withdraw  at  pleasm^e,  he  must  as  in  other  cases 
first  obtain  the  floor  for  that  purpose.  Bills  and  other  documents, 
which  have  been  received  by  the  house,  may  be  withdrawn  at  any 
time  by  the  ordinary  major  vote.  Proceedings  for  the  withdrawal 
of  a  motion,  bill,  or  other  document,  supersede  the  pending  question, 
for  the  time  being ;  if  decided  in  the  affirmative,  the  motion  to 
which  they  relate  is  thereby  removed  from  before  the  house  ;  if  in 
the  negative,  the  business  proceeds  as  before. 


1  Hatsell,  II.  163,  164.  ing  with  it  the    principal  motion,  but  this 

*  It  seems,  tlmt  an  incidental  question  may  must  be  determined  by  the  nature  of  each 

be  disposed  of,  by  any  of  the  ordinary  subsid-  question. 

iary  motions,  in  some  cases,  without  carry- 


Chap.  VI.]     incidental  questions. — suspension  of  rules.       575 


4.    Suspension  of  a  Rule. 

1478.  When  any  contemplated  motion  or  proceeding  is  irregnlar, 
by  reason  of  the  existence  of  some  order  of  the  house,  either  stand- 
ing or  otherwise,  by  which  it  is  prohibited,  such  motion  cannot  ])C 
made,  or,  if  made,  cannot  be  entertained  by  the  speaker,  without  a 
suspension  of  the  rule  or  Order,  width  renders  it  irregular.  Some- 
times a  suspension  of  the  orders  is  moved  as  a  preliminary  step, 
before  the  proposed  motion  or  proceeding  is  brought  forward ;  ^ 
sometimes  it  is  moved  after  the  motion  has  been  made  and  objected 
to  as  in-egular ;  and  sometimes  a  suspension  of  the  orders  takes 
place  virtually,  without  being  moved,  but  only  by  the  adoption  of 
the  motion  or  proceeding,  in  question,  which,  in  fact,  involves  a 
suspension  of  the  orders. 

1479.  When  this  proceeding  becomes  necessary,  in  order  to  the 
admission  of  some  other  motion,  having  a  reference  to  a  proposition 
then  under  consideration,  a  motion  to  suspend  the  orders  super- 
sedes the  original  question  for  the  time  being,  and  is  first  to  be 
decided. 

1480.  Where  a  rule  or  order  contains  a  provision,  permitting 
the  house,  on  any  occasion,  that,  in  their  judgment,  may  justify  a 
departure  from  the  rule,  to  do  so,^  the  order  may,  as  it  seems,  be 
dispensed  with  according  to  its  terms,  or  by  a  vote  of  the  majority 
in  the  usual  manner ;  but,  where  the  rule  is  absolute,  and  contains 
no  such  provision,  it  can  only  be  departed  from,  or  set  aside  in 
the  particular  case,  by  general  consent,  that  is,  by  an  unanimous 
vote.3 

1481.  In  all  those  cases,  except  as  above  mentioned,  where  a 
suspension  of  the  orders  is  not  moved  as  a  distmct  motion,  but  is 
virtually  involved  in  some  other  motion  or  proceeding,  which  is 
alone  put  to  the  question,  such  motion  can  only  prevail  by  general 
consent. 

1482.  In  the  British  parliament,  from  the  practice  of  which  the 
foregoing  principles  are  derived,  the  suspension  of  a  rule  for  a  par- 
ticular purpose  is  an  extremely  rare  proceeding.  In  our  legislative 
assemblies,  on  the  contrary,  it  is  of  frequent  occurrence,  and,  for 


1  Hans.  (3),  L.  157.  «  Pari.  Reg.  IX.  102. 

»  Pari.  Reg.  XIX.  5;   J.  of  H.  26th  Cong. 
Ist  Sess.  612;  Rop.  of  Deb.  IV.  Part  2,  1722. 


576  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

the  time  being,  supersedes,  of  course,  the  business  then  in  hand,  or 
the  general  course  of  business ;  if  moved  with  reference  only  to  a 
subject  then  before  the  assembly,  it  is  incidental  to  that  busi- 
ness only ;  if  there  is  no  other  subject  then  before  the  assembly,  and 
the  motion  is  made  for  the  purpose  of  introducing  some  new  mat- 
ter, as,  for  example,  a  bill  or  resolution,  the  motion  is  incidental  to 
the  general  course  of  business ;  but,  in  both  cases,  the  motions  to 
suspend  the  rules  are  regulated  in  the  same  manner,  and  will  be 
explained  together. 

1483.  The  motion  to  suspend  the  rules  is  usually  preceded  by  a 
member's  requesting  the  general  consent  of  the  assembly  to  the  doing 
of  a  particular  thing.  If  no  one  objects,  (and  any  thing  whatever 
may  be  done  by  general  consent,)  the  assembly  is  deemed  to  assent, 
and  what  is  desked  is  allowed  accordingly.^  If  objection  is  made, 
then  the  member  moves  that  the  rules  be  suspended  for  the  specific 
purpose  which  he  has  in  view. 

1484.  This  motion  may  be  made  at  any  time,  when  a  motion  is 
in  order,  and  for  any  purpose ;  ^  it  may  be  either  for  the  suspension 
of  a  particular  rule  or  of  the  rules  generally ;  ^  and,  if  made  in  the 
latter  form,  and  it  prevails,  it  wiU  operate  to  suspend  all  the  unwrit- 
ten as  well  as  the  vvTitten,  rules,  (except  the  rule  allowing  of  a  sus- 
pension,) which  govern  the  assembly,  and  are  opposed  to  the  doing 
of  the  thing  which  the  mover  desires  to  do. 

1485.  This  motion  may  be  occasioned  by  a  lapse  of  the  time 
within  which  certain  business  is  in  order,  for  the  purpose  of  con- 
tinuing the  discussion  thereof;^  for  the  purpose  of  throwing  open 
particular  days  otherwise  devoted  to  the  consideration  of  a  certain 
class  of  subjects  ;  ^  for  the  purpose  of  reading  a  bill  more  than  once 
on  the  same  day;^  for  the  purpose  of  going  into  committee  of  the 
whole  at  a  particular  time ; '  for  the  purpose  of  admitting  the  pre- 
sentation of  resolutions ;  ^  for  the  purpose  of  receiving  reports  ;  ^  for 
the  purpose  of  a  personal  explanation ;  '^^  and,  generally,  for  the  pur- 

1  J.  of  S.  V.  92.  23d  Cong.  1st  Sess.  631 ;  Cong.  Globe,  VIII. 

2  J.  of  H.  29th  Cong.  1st  Sess.  364.    See     452. 

also  Cong.  Globe,  XVII.  439;  Same,  XX.  »  J.  of  S.  14th  Cong.  2d  Sess.  41;  Same. 
188.  15th  Cong.  1st  Sess.  404;  Cong.  Globe,  VIII. 

3  Cong.   Globe,  XV.  343;    Same,   XVIII.      604;  Same,  XH.  371. 

1029.  ^  J.  of  H.  27th  Cong.  1st  Sess.  855 ;  Cong. 

*  J.  of  H.  20th  Cong.  1st  Sess.  137,  1403;  Globe,  VIII.  431. 

Same,  656,  657;    Same,  23d  Cong.  2d  Sess.  '  J.  of  H.  27th  Cong.  1st  Sess.  169;  Same, 

556;    Cong.  Globe,  XUI.  352;    Same,  XIV.  81st  Cong.  1st  Sess.  1092,  1096. 

124.  9  Cong.  Globe,  XV.  236. 

6  J.  of  H.  21st  Cong.  1st  Sess.  687;  Same,  "  Cong.  Globe,  XV.  729. 


CUAP.  VI.]       INCIDENTAL   QUESTIONS. SUSPENSION   OF   RULES.  577 

pose  of  transacting  any  of  the  ordinary  business  of  the  assembly 
which  would  not  otherwise  be  in  order ;  ^  or  it  may  be  limited  as 
to  time,  as,  for  one  hour,-  or  one  day,-^  or  until  a  particular  member 
has  finished  his  speech,  and  then  to  enable  another  to  make  a 
motion;^  or  limiting  the  duration  of  the  time  which  members  may 
occupy  in  debate;^  K  the  motion  to  suspend  applies  to  a  joint 
rule,  which  it  does  not  unless  particularly  specified,  the  concurrence 
of  both  houses  is  necessary.*^ 

1486.  If  the  assembly  is  engaged  in  the  consideration  of  other 
business,  at  the  time,  a  motion  to  suspend  the  rules  for  a  particular 
purpose,  is  in  order,  provided  there  is  then  no  motion  pending  for 
the  suspension  of  the  rules ; "  or  provided  the  motion  for  the  pre- 
vious quesiion  is  not  pending,"'  though  it  is  otherwise  if  the  main 
question  has  been  ordered ;  •'  or  provided  the  assembly  is  not  already 
acting  under  a  special  order,  to  the  establishment  of  which  a  sus- 
pension of  the  rules  was  necessary ;  ^'^  or  provided  the  assem- 
bly is  not  already  engaged,  in  acting  under  a  suspension  of  the 
rule.ii 

1487.  If  a  motion  to  suspend  the  rules  for  a  particular  purpose 
is  decided  in  the  negative,  there  can  be  no  reconsideration  of  the 
vote.'-  Nor  is  any  second  motion  to  suspend  the  rules  for  the 
samd  purpose  in  order  on  the  same  day ;  ^'^  unless  the  motion  is 
varied  in  its  terms,^'*  or  is  for  a  different  time  ;  ^^  or  unless  some  inter- 
vening business  takes  place ;  ^^  but  a  second  suspension  for  the  same 
purpose  is  in  order  on  a  different  day;^^  and  a  vote  to  suspend  the 
rules  may  be  reconsidered. 

1488.  This  motion  cannot  be  amended  ^^  nor  can  it  be  laid  on  the 

1  J.  of  H.  22d  Cong.  2d  Sess.  385 ;    Same,  Deb.  X.  Part  3,  3473 ;  Cong.  Globe,  XIII.  446, 

23d  Cong.  2d  Sess.  656;  Same,  24th  Cong.  1st  447;  Same,  XVIII.  439. 

Sess.  472;  Same,  1213;  Same,  2d  Sess.  204;  »  J.  of  H.  31st  Cong.  1st  Sess.  1550;  Cong. 

Same,  30th  Cong.  1st  Sess.  956;  Reg.  of  Deb.  Globe,  XI.  824:  Same,  XVII.  401. 

X.  Part  2,  2783;  Cong.  Globe,  XV.  123,  231.  '"  J.  of  H.  31st  Cong.  1st  Sess.  1096;  Cong. 

«  J.  of  U.  29th  Cong.  1st  Sess.  1235;  Cong.  Globe,  XVII.  401,  439;  Same,  XVIII.  639. 

Globe,  XIV.  123.  "  Cong.  Globe,  XI.  58,  142;    Same,  XIL 

»  J.  of  II.  21,st  Cong.  1st  Sess.  679.  317 ;  Same,  XV.  67,  790 ;  Same,  XXl!  1225. 

*  J.  of  H.  23d  Cong.  1st  Sess.  631.  «  Cong.  Globe,  XXIII.  182,  227. 

»  Cong.  Globe,  XV".  342.  "  Cong.  Globe,  VIII.  89,  257,  268. 

»  J.  of  H.  ISth  Cong.  1st  Sess.  139;  J.  of  S.  »  Cong.  Globe,  VIII.  69. 

18th  Cong.  2d  Sess.  241 ;  J.  of  H.  20th  Cong.  »  Cong.  Globe,  VIII.  432. 

SdSess.  3S3,  388;  J.  of  S.  21st  Cong.  2d  Sess.  i*  Cong.  Globe,   VIII.  268;    Same,  XXIII. 

214;  J.  of  H.  24th  Cong.  1st  Sess.  1210-1217;  753. 

Reg.  of  Deb.  VI.  Part  2,1139;    Cong.  Globe,  "  Cong.  Globe,  VIIL  93. 

XII.  371;  Same,  XIV.  278.  w  Cong.  Globe,  XX.  319,  320;  but  see  J.  of 

'  Cong.  Globe,VIII.  487;  Same,  Xm.  617,664.  H.  24th  Cong.  1st  Sess.  1217;   Cong.  G.cbe 

•J.  of  U.  24th  Cong.  1st  Sess.  591;  Reg.  of  XI.  121,  387. 

4y 


578  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI 

table  ^  or  postponed  indefinitely ;  ^  but  the  previous  question  may 
be  put  upon  it ;  ^  it  may  be  taken  by  yeas  and  nays  *  and  it  may  be 
taken  as  divided,  if  divisible;^  If  the  assembly  adjourns  during  its 
consideration,  it  is  not  suppressed  by  the  adjournment,  but  goes 
over  to  the  next  day,  as  the  unfinished  business  of  the  preceding 
day,  or  to  the  next  day  on  which  business  of  the  same  description 
is  in  order.'^  A  suspension  of  the  rules  may  take  place  without  any 
of  the  previous  formalities  which  are  necessary  when  it  is  proposed 
to  alter  the  rules.'  On  this  motion  the  bill  or  resolution,  which  it 
seeks  to  introduce,  cannot  be  read,  but  by  its  title  only ;  ^  nor  can 
any  order  be  made  concerning  it  until  it  is  before  the  assem- 
bly.9 

1489.  If  this  motion,  being  made  for  the  purpose  of  introducing 
some  new  business,  is  decided  in  the  affirmative,  the  same  is  to  be 
introduced  in  the  ordinary  manner,i^  and  it  wiU  then  be  open,  like 
every  other  paper  of  the  same  description,  to  amendment,  modifica-' 
tion,  rejection,  and  discussion.^^  Such  a  decision  will  authorize  the 
introduction  of  the  same  resolution  mentioned  in  the  motion,  by 
another  person  than  the  mover,  and  even  though  the  latter  with- 
draws the  resolution  or  refuses  to  submit  it;  ^^  i^-^j^i  {i  ^i]  ^ot  author- 
ize the  introduction  of  a  different  bill,^'5  or  of  two  resolutions  instead 
of  one.^* 

1490.  When  a  given  subject  is  allowed  to  be  introduced,  under 
a  suspension  of  the  rules  for  the  purpose,  and  it  is  introduced 
accordingly,  such  suspension  is  an  authority  to  do,  in  the  accus- 
tomed methods  of  proceeding,  whatever  may  properly  relate  to  that 
subject.  Thus,  if  authority  is  given  under  a  suspension  of  the 
rules,  to  introduce  a  resolution  on  a  particular  subject,  which  is 
introduced  and  received  accordingly,  it  may  not  only  be  introduced, 
but  considered  and  finished.^^ 

1491.  This  motion,  unless  it  is  otherwise  provided  in  the  rules 
themselves,  is  decided  by  the  ordinary  major  vote.     Thus,  in  the 

1  Cong.  Globe,  XV.  1135;    but  see    Same,  »  Cong.  Globe,  XIIL  446,  447. 

51.  10  J.  of  H.  30tli  Cong.  2d  Sess.  330;  Cong. 

s  Cong.  Globe,  VIII.  120.  Globe,  XIII.  446,  447. 

8  J.  of  H.  24th  Cong.  2d  Sess.  187.  "  Cong.  Globe,  VL  369;  Same,  XX.  188. 

*  Cong.  Globe,  VIL  38;    Same,  VIIL  431,  ^"-  J.  of  H.  23d  Cong.  1st  Sess.  631;  Reg.  of 

432.  Deb.  X.  Part  3,  4136. 

6  Cong.  Globe,  XX.  319,  320.  i^  Cong.  Globe,  III.  300;    Same,  XXL  1727. 

»  Cong.  Globe,  XXIII.  145.  "  Cong.  Globe,  XI.  574. 

I  J.  of  S.  21st  Cong.  2d  Sess.  214;  J.  of  H.  '^  Cong.  Globe,  VIII.  94,  336;    Same,  XII. 

22d  Cong.  2d  Sess.  126 ;  Same,  29th  Cong.  1st  292.    But  see  .L  of  H.  27th  Cong.  2d  Sess.  763 

Sess.  364;  Cong.  Globe,  VIII.  604.  764. 

«  Cong.  Globe,  XX.  615. 


CfIAP.    VI.]         INCIDENTAL   QUESTIONS.  —  YEAS   AND    NAYS.  579 

rules  of  the  house  of  representatives  of  the  United  States,  a  pro- 
vision is  inserted,  that  the  rules  shall  not  be  suspended,  but  by  a 
vote  of  two  thirds;  while  Ihe  joint  rules  are  silent  on  the  subject. 
The  consequence  is,  that  the  rules  of  the  house  can  only  be  sus- 
pended by  a  vote  of  two  thirds,  but  the  joint  rules  may  be  sus- 
pended by  the  concurrent  votes  of  a  majority  of  each  branch.^ 

1492.  A  suspension  of  the  orders  can  only  take  place  in  reference 
to  a  proceeding  to  be  instituted,  or  a  motion  to  be  made,  during 
the  current  session:  thus,  where  a  motion  was  made  in  the  house 
of  commons  that  the  promoters  of  a  certain  railway  might  be  al- 
lowed to  bring  in  a  bill  in  the  next  session,  on  giving  the  notices 
required  in  reference  to  other  bills,  and  that  the  standing  orders 
relating  to  the  deposits  of  capital  on  railways  be  dispensed  with 
for  the  purpose,  the  motion  was  objected  to,  (and  a})pears  to  have 
been  waived  by  the  mover,)  on  the  gi-ound,  that  "  it  would  be  for 
that  session  of  parliament  to  inquire  whether  the  proper  notices 
had  been  given,  and  whether  the  proper  deposits  had  been  made, 
and  whether,  in  fact,  the  standing  orders  had  been  complied  with  ; 
and  if  that  were  not  the  case,  then  would  be  the  time  to  endeavor 
to  induce  the  house  to  accede  to  the  proposition  now  made."  - 

5.   Of  taking-  the   Question  by  Yeas  and  Nays. 

1493.  It  is  provided  in  almost  all  the  American  constitutions, 
that  the  yeas  and  nays  of  the  members  of  our  legislative  bodies, 
on  any  question  pending  before  them,  shall  be  taken  and  recorded 
in  their  journal,  on  the  demand  of  a  certain  number  of  the  members 
present,  or  of  a  certain  proportion  of  their  number ;  but  no  mode  is 
therein  pointed  out  for  ascertaining  whether  that  form  of  taking 
the  question  is  demanded  by  the  requisite  number.  This  is  left  to 
be  done  by  putting  the  question,  on  the  demand  of  a  single  mem- 
ber, in  the  ordinary  manner.  The  motion  for  this  jmrpose  is  inci- 
dental to  the  ordinary  course  of  proceeding. 

1494.  The  practice  in  demanding  or  moving  for  the  yeas  and 
nays  is  the  same,  whether  they  are  moved  for  under  this  provision, 
or  where  they  are  only  provided  for  by  the  rules  and  orders  of 
the  assembly  in  which  they  are  proposed  to  be  taken.  They  may 
be  demanded  by  a  single  member,  and  it  then  becomes  the  duty 
of  the  presiding  oiFicer  to  ascertain  whether  the  requisite  number 
is  in  favor  of  the  demand.     This  method  of  voting  may  be  applied 

>  Conjr.  Glol.o,  XII.  374:  Same,  XIII.  695;         »  Hans.  (3),  LV.  14. 
Same,  XIV.  304.    See  Suine,  XX.  629. 


580  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

to  all  questions^  whether  subsidiary  or  principal,  which  are  before 
the  assembly  for  its  determination,  but  not  to  matters  which  are 
not  strictly  questions ;  as,  for  example,  to  a  motion  for  the  yeas 
and  nays,  or,  where  more  than  one  member  is  required,  whether  the 
requisite  number  is  in  favor  of  a  demand  for  the  previous  question,^ 
or  to  a  motion  to  reconsider  a  demand  for  the  previous  question.^ 

1495.  The  yeas  and  nays  may  be  ordered,  when  a  quorum  is 
not  present  on  all  questions  which  may  be  taken  without  a  quo- 
rum, but  not  on  others  ;  ^  and  may  be  moved  for  after  a  question 
is  proposed,  not  only  during  the  voting  on  it  in  any  other  form,  as, 
for  example,  while  the  negative  vote  is  taking,^  or  whUe  the  vote  is 
announcing,'^  or  before  it  is  announced,'''  but  even  after  the  decision 
is  announced,  provided  the  house  has  not  passed  to  other  business." 
If  the  yeas  and  nays  are  ordered  to  be  taken  on  a  motion  which  is 
subsequently  withdrawn,  and  afterwards  renewed,  there  must  be  a 
new  motion  and  vote  for  taking  the  question  by  yeas  and  nays.*^ 

1496.  A  motion  for  the  yeas  and  nays  can  only  be  made  once 
in  reference  to  the  same  question.^  If  decided  in  the  negative,  it 
is  not  in  order  to  move  a  second  time  that  the  question  be  taken  in 
that  manner.^*^  K  decided  in  the  affirmative,  the  order  may  be  dis- 
charged or  rescinded  by  the  revising  of  the  vote  by  which  the  yeas 
and  nays  are  required  to  be  ordered.  In  both  cases,  the  matter 
may  be  reached  again  by  a  motion  to  reconsider.^'  This  motion  is 
itself  to  be  decided  by  the  ordinary  major  vote ;  but,  if  decided  in 
the  affirmative,  it  gives  rise  at  once,  to  the  motion  for  tlie  yeas 
and  nays,  to  be  decided  according  to  the  rule  established  for  that 
purpose.12 

1497.  When  a  question  is  ordered  to  be  taken  in  this  manner,  it 
is  open  to  debate  until  the  clerk  has  begun  to  caU  the  roU  and  one 
member  at  least  has  answered  to  his  name,  when  further  debate  is 
precluded ;  ^'^  none  but  members  who  are  within  the  bar,  that  is  to 
say,  within  the  house,  when  the  question  is  stated,  have  a  right  to 
give  their  votes  upon  it ;  '*  and  any  member  who  has  aheady  an- 

'  J.  of  H.  19th  Cong.  2d  Scss.  254;  Cong.  «  Cong.  Globe,  VIII.  393. 

Globe,  XX.  260,  261,  262;  Same,  XXL  1568.  »  Cong.  Globe,  XX.  623,  624. 

2  J.  of  H.  2Gth  Cong.  1st  Sess.  1288.  i"  Cong.  Globe,  XIV.  88;   Same,  XV.  303, 

3  .J.  of  H.  32d  Cong.  1st  Sess.  651,  652,  727;  304. 

Same,  2d  Sess.  87,  145;  Cong.  Globe,  XIV.        "  Cong.  Globe,  XX.  623,  624;  J.  of  II.  30th 

330.  Cong.  1st  Sess.  405 ;  Cong.  Globe,  VIIL  420 
*  Cong.  Globe,  XL  883;  Same,  XIV.  121.  12  J.  of  H.  30th  Cong.  1st  Sess.  405. 

6  Cong.  Globe,  XV.  420.  1^  J.  of  H.  VI.   446 ;  Same,   I7th  Cong.  1st 

«  Cong.  Globe,  XL  741;  Same,  XIII.  482.  Sess.  216,  217;  Reg.  of  Deb.  IV..  Part  2,  2479 

'  J  of  H.  32d  Cong.  2d  Sess.  194, 195;  Cong.  Cong.  Globe,  XXI.  1686. 
Globe,  XXI.  277.  "  J.  of  H.  19th  Cong.  1st  Sess.  796. 


Chap.  VL]    incidental  questions. — yeas  and  nays.  581 

swered  to  his  name  may,  at  his  own  request,  be  called  again  ^  and 
change  his  vote,  and  back  as  many  times  as  he  pleases,'-  at  any 
time  before  the  decision  is  announced.'^  The  yeas  and  nays  cannot 
be  taken  in  committee  of  the  whole.'* 

Section  II.     Op  Motions  related   to,  or  connected  with,  some 
Subject  wmcn  is  deemed  to  be  of  Paramount  Importance. 

1498.  The  second  class  of  questions,  which,  when  they  arise, 
take  tlie  place  of  other  pending  questions,  for  the  time  being,  con- 
sists of  those  which  relate  to,  or  are  connected  with  some  subject 
which  is  deemed  to  be  of  paramount  importance,  either  in  itself 
considered,  or  in  vntue  of  some  previous  vote  or  proceeding  of  the 
house.  Questions  of  this  class  are  of  two  kinds,  namely,  motions 
or  questions  relating  to  the  rights  and  privileges  of  the  house,  or  of 
its  individual  members,  and  those  relating  to  the  orders  of  the  day, 
and  other  matters  of  business.  The  first  are  called  questions  of 
privilege  ;  the  latter  privileged  questions. 

1.    Questions  of  Privilege. 

1499.  The  very  existence  of  a  legislative  assembly,  to  say 
nothing  of  its  power  of  acting  with  freedom  and  efficiency,  depends 
so  entirely  upon  the  maintenance  of  what  are  denominated  its  privi- 
leges, and  of  the  privileges  of  its  individual  members,  that  aU 
questions  relating  to  these  subjects  are  deemed  of  paramount 
importance,  and  are  allowed  to  supersede  for  the  time  being  any 
other  question  which  may  then  be  under  consideration.  When, 
therefore,  any  question  of  this  kind  arises,  as,  for  example,  when 
members  are  attacked  with  force  and  violence,  either  within  the 
precincts  of  the  house,  or  on  their  way  thither ;  or  are  obsti'ucted  in 
entering  the  house,  either  by  violence  or  insult ;  when  the  proceed- 
ings of  the  house  are  disturbed  or  interrupted,  either  by  members 
or  strangers ;  when  the  freedom  of  debate  and  proceeding  is 
attempted  to  be  overawed  by  mobs  or  armed  force  without ;  or 
when  a  personal  quarrel  takes  place  between  tsvo  or  more  mem- 
bers, within  the  house ;  in  all  such  cases,  the  house  will  proceed,  at 
once,  laying  aside,  or  rather  suspending,  without  any  vote,  all 
other  business,  to  consider  the  matter  in  which  their  privileges  are 
involved;  and,  if  necessary  to  bring  the  subject  before  the  house,  a 
nember  speiking  may  even  be  interrupted  in  his  speech,  in  the 

»  Cong.  Globe,  X.  55.  »  J.  of  II.  V.  71 ;  Cong.  Globe,  XIII.  325,  326. 

«  Cong.  Globe,  XXI.  171.  *  Cong.  Globe,  XIII.  618. 

49* 


582  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

same  manner,  as  if  he  had  been  guilty  of  a  breach  of  the  orders  of 
the  house. 

1500.  When  a  member  brings  forward  a  question  of  this  kind, 
either  in  the  shape  of  a  verbal  or  written  complaint,  upon  which  he 
propo.'^es  to  predicate  some  motion  or  resolution  for  the  considera- 
tion of  the  house,  or  in  the  form  of  a  motion,  or  resolution  which  he 
submiis  at  once  for  the  consideration  of  the  house,  it  is  for  the  pre- 
siding officer  to  decide,^  in  the  first  instance,  whether  the  member's 
statement,  in  whatever  manner  it  is  brought  forward,  involves  a  ques- 
tion of  privilege,  and  as  such  is  entitled  to  supersede  other  business. 

1501.  But  though  a  question  of  privilege  is  thus  allowed  to 
supersede  all  other  business  for  the  time  being,  it  does  not  follow 
that  no  other  business  is  to  be  done,  until  the  matter  of  privilege  is 
finally  settled  and  determined.  This  would,  in  many  cases,  do 
more  to  impede,  than  to  facilitate,  the  business  of  the  house.  It  is 
only  necessary,  therefore,  when  a  breach  of  privilege  occurs,  and  is 
taken  notice  of  by  the  house,  or  is  brought  to  its  knowledge,  that 
the  house  should  proceed  to  such  immediate  measures  as  it  may 
think  proper,  in  order  to  vindicate  itself  or  its  members,  or  to  remove 
all  obstructions  to  its  freedom  of  proceeding.  When  this  has  been 
done,  whether  the  matter  of  privilege  is  thus  settled,  or  only  tem- 
porarily disposed  of,  the  business  thereby  interrupted  revives,  and  is 
resumed  at  the  precise  point  where  it  was  broken  off. 

1502.  It  will  be  obviously  impossible,  though  the  leading  cases 
give  rise  to  no  doubt,  to  describe  beforehand,  except  in  the  most  gen- 
eral and  comprehensive  terms,  all  the  questions  of  this  kind,  which 
may  arise  in  a  legislative  assembly ;  but  some  of  the  most  important 
of  those,  which  have  occurred  in  the  house  of  representatives  of 
the  United  States,  will  serve  to  give  an  idea,  perhaps  an  ade- 
quate one,  of  cases  of  this  description.  These  cases  will  now  be 
briefly  mentioned,  first,  those  in  the  affirmative,  and  then  those  m 
the  negative. 

1503.  It  has  accordingly  been  decided,  in  that  assembly,  that  the 
following  subjects,  among  others,  may  be  entertained  therein,  as 
matters  of  privilege,  that  is  to  say :  —  Questions  relating  to  the 
right  of  members  and  delegates  to  be  qualified,  including,  of  course, 
then'  credentials,'-^  namely,  members  who  are  duly  returned  but  were 
not  present  at  the  organization  of  the  house,^  members  entitled  to 
eeats  by  the  determination  of  a  controverted  election,*  and  mera- 

1  J.  of  H.  29th  Cong.  1st  Sess.  723,  724,  725 ;  a  Cong.  Globe,  X.  83. 

Same,  2d  Sess.  13G;  Cong.  Globe,  XVII.  115,  '  ,J.  of  H.  31st  Cong.  1st  Sess.  190;  Cong. 

187,  400,  401;  Same,  XVIIL  653;  Same,  XX.  Globe,  X.  349,  350;  Same,  XI.  1. 

110;  Same,  XXI.  1678.  '  Ante.  475. 


Chap.  VI.]  questions  of  privilege.  583 

bers  returned  to  fill  vacancies;^  questions  afTecting  the  right  of 
members  to  their  seats,  whether  existing  in  the  shape  of  charges 
contained  in  a  petition ;  -  or  in  resolutions  reported  by  the  committee 
on  elections,  or  otherwise,  and  pending  in  the  house  ;-^  questions 
relating  to  the  character  or  conduct  of  members,  as,  for  example, 
resolutions  1o  censure  or  expel  a  member; '  the  right  of  a  member  to 
defend  himself  against  the  charge  in  a  petition  lying  on  the  table;'' 
the  report  of  a  select  committee  for  investigating  certain  cliarges 
against  a  member;*^  a  complaint  of  one  member  against  another  for 
a  supposed  insult  in  the  house,  for  words  used  by  the  former,  in 
debate ; '  and  in  considering  and  returning  the  letter  of  a  i)ublic 
officer  containing  injurious  reflections  upon  a  member  for  words 
used  by  him  in  debate ;  '^  questions  relating  to  the  conduct  of  per- 
sons in  the  employment  of  the  house,  as,  for  example,  a  resolution 
to  dismiss  one  of  its  printers  for  charging  a  member  \viih  false- 
hood ;  ■'  or  to  expel  a  reporter  from  the  house  for  giving  a  false  and 
scandalous  account  of  a  debate ;  ^^  questions  relating  to  the  gen- 
eral or  aggregate  privileges  of  the  house,  as,  for  example,  the 
remonstrance  of  a  foreign  diplomatic  agent,  to  one  of  the  heads  of 
departments  on  the  passing  of  a  certain  bill  of  congress ;  ^^  a  com- 
mon report  that  members  had  been  threatened  by  a  mob ;  ^-  a  resolu- 
tion for  correcting  the  journal  when  it  is  not  made  up  according  to 
the  facts  ;^^  and  the  correction  relates  to  some  matter  then  pending 
before  the  house  ;  ^^  a  false  account  in  a  public  newspaper,  of  what 
took  place  in  the  house  on  a  certain  occasion ;  ^''  a  report,  lying  on 
the  table,  concerning-  a  personal  conflict  between  two  members ;  ^^ 
whether  the  journal  of  the  house  has  been  printed  by  its  direction, 
according  to  the  requisitions  of  the  constitution ;  ^'  the  report  of  a 
committee  charging  a  witness  before  them  with  contumacy ;  ^^ 
questions  relating  to  an  impeachment ;  ^^  and  to  the  report  of  a  com- 
mittee appointed  to  investigate  the  conduct  of  the  secretary  of  the 
treasury  in  reference  to  a  certain  matter.-*^ 

1504.    On   the   other  hand,  it   has   been  decided  by  the  same 

•  Goiis.  Globe,  VI.  410;  Same,  XI.  1:  Same,         i«  .1.  of  II.  2Mi   Cdiic.  2^1  Sess.  320. 
XVII.  339.  "  J.  of  H.  27th  Coug.  1st  Sess.  320. 

«  Cong.  Globe,  VIII.  119.  1=  J.  of  H.  30th  Cong.  1st  Sess.  712;  Coug. 

»  J.  of  H,  31st   Cong.  2.1  Sess.  119;  Cong.  Globe,  XVIII.  653. 
Globe,  VIII.  517,  551;   Same,  XVII.  187,  527;        "  J.  of  H.  31st  Cong.  1st  Sess.  1266. 
Same,  XXI.  1678.  "  J.  of  H.  32d  Cong.  1st  Sess.  146. 

•  Cong.  Globe,  XI.  168.  «  Cong.  Globe,  XIII.  194. 

»  Cong.  Globe,  XI.  161,  162.  "  Cong.  Globe,  XIII.  577,  578, 

•  Cong.  Globe,  XXI.  1789.  "  Cong.  Globe,  XV.  32. 
T  Cong.  Globe,  XIII.  277.  "  Cong.  Globe,  XX.  242. 

8  Cong.  Globe,  XII.  101;  Same,  102  "  J.  of  H.  27th  Cong.  3d  Sess.  159;    Cong. 

«  J.  of   H.  jgth  Cong.  1st   Sess.  223,  224;      Globe,  XII.  144,  145. 
Cong.  Globe,  XV.  178.  *)  Cong.  Globe,  XXI.  1019. 


584  LEGISLATIVE   ASSEMBLIES.  [PaET   VI. 

assembly,  that  the  following  subjects  are  not  entitled  to  be  enter- 
tained therein,  as  matters  of  privilege,  namely :  —  Questions 
relating  to  a  member's  having  forfeited  his  right  to  a  seat,  in  con- 
sequence of  his  acceptance  of  a  disqualifying  office,  such  member 
having  resigned  his  seat  in  the  house ;  ^  whether  a  public  officer  has 
failed  or  refused  to  fm-nish  information,  as  directed  by  an  order  of 
the  house ;  ^  unless  such  failure  or  refusal  is  in  derogation  of  the 
honor  or  dignity  of  the  house ;  ^  calhng  upon  a  public  officer  to 
furnish  information  forthwith ;  ^  cognizance  of  a  charge  of  corrup- 
tion of  the  other  branch  made  therein  by  a  member  of  the  same  y' 
proceeding  with  the  election  of  a  clerk,  the  house  having  already 
assigned  a  time  for  the  election  of  that  officer ;  ^  devolving  the 
duties  of  door-keeper  temporarily  upon  the  sergeant-at-arms ; "'  the 
election  of  a  door-keeper  and  postmaster  of  the  house ;  ®  a  propo- 
sition to  alter  the  journal  when  the  same  is  correctly  made  up ;  ^ 
the  report  of  a  committee  authorized  to  report  forthwith  ;  ^^  asking 
to  be  excused  from  serving  on  the  committee ;  ^^  explaining  a 
charge  in  a  public  newspaper  against  a  member ;  ^^  concerning  the 
mileage  and  pay  of  the  claimant  of  a  seat  at  a  former  congress ;  ^^ 
requesting  information  of  the  president  as  to  the  conferring  of  dis- 
quahfying  offices  upon  certain  members  i^"^  a  personal  explanation.^^ 

1505.  As  the  precedence,  to  which  questions  of  privilege  are 
entitled,  is  derived  from  the  nature  of  the  subject,  and  not  from  the 
form  of  the  motion,  these  questions  supersede  not  merely  the 
motion  pending,  at  the  time,  but  the  subject  to  which  it  relates, 
and  all  questions  connected  with  or  incidental  to  it,  and  pending  at 
the  same  time. 

1506.  It  is  immaterial  what  the  evidence  is,  on  which  a  com- 
plaint for  a  breach  of  privilege  is  founded,  provided  it  satisfies  the 
member  making  such  complaint.  The  rule,  on  this  subject,  was 
laid  down  in  the  following  terms,  in  the  house  of  representatives  of 
the  United  States,  by  Mr.  Speaker  Winthrop :  —  "If  a  member 
rose  and  stated  a  breach  of  privilege  committed  on  himself  or  a 
fellow-member,  whether  arising  upon  facts  within  his  own  knowl- 
edge, or  reaching  him  by  rumor,  whether  growing  out  of  debate  in 
this  house,  or  of  chcumstances  wMch  happened  a  thousand  miles 

1  J.  of  H.  29th  Cong.  2d  Sess.  136,  486.  »  j.  of  H.  31st  Cong.  1st  Sess.  806. 

2  ,J.  of  H.  29th   Cong.  2d  Sess.  229;   Cong.  »  J.  of  H.  31st  Cong.  1st  Sess.  1266. 
Globe,  XVII.  252,  253,  254.                                         i»  Cong.  Globe,  VIII.  236. 

3  Cong.  Globe,  XVII.  401.  "  Cong.  Glolje,  XI.  222,  229. 
*  J.  of  H.  29th  Cong.  2d  Sess.  333.                         i'-  Cong.  Globe.,  XIII.  139. 

6  J.  of  H.  29th  Cong.  2d  Sess.  594.  i"  Cong.  Globe,  XV.  821. 

«  J.  of  II.  31st  Cong.  1st  ?.ess.  228.  "  Cong.  Globe,  XVII.  187. 

I  .1.  of  H.  31st  Con«   1st  Se.ss.  456  "  Coug,  Globe.  XX.  108. 


Chap.  VI.]  privileged  questions.  585 

distant,  the  chair  decided,  that,  upon  the  allegation  being  made,  it 
was  for  tiie  house  to  take  np  the  question,  and  determine  whether 
such  a  breach  of  privilege  had  occurred  as  to  require  its  interposi- 
tion, and  whether  there  was  suflicient  ground  for  its  being  enter- 
tained as  a  question  of  privilege."  ^ 


2.   Privileged  Questions. 

1507.  Questions  of  this  description,  are  those  to  which  prece- 
dence is  given  beforehand,  over  other  questions  of  the  same  nature, 
by  some  general  or  special  order  of  the  assembly.  The  first  and 
most  numerous  class  of  cases  of  this  kind,  the  origin  and  nature  of 
which  have  already  been  explained,  at  least,  in  part,  consists  of  the 
orders  of  the  day.  When  the  consideration  of  a  subject  has  been 
assigned  for  a  particular  day,  by  an  order  of  the  house,  Ihe  subject 
so  assigned  is  called  the  order  of  the  day  for  that  day.  If,  in  the 
course  of  business,  as  commonly  happens,  there  are  several  sub- 
jects assigned  for  the  same  day,  they  are  called  the  orders  of  the 
day. 

1508.  A  question,  which  is  thus  made  the  subject  of  an  order  for 
its  consideration  on  a  particular  day,  is  thereby  made  a  privileged 
question  for  that  day ;  the  order  being  a  repeal,  as  to  this  special 
case,  of  the  general  rule  as  to  business.  If,  therefore,  any  other 
proposition,  with  the  exception  of  a  question  of  privilege  or  some 
other  privileged  question,  entitled  to  precedence,  is  moved,  or  arises, 
on  the  day  assigned  for  the  consideration  of  a  particular  subject,  a 
motion  for  the  order  of  the  day  wiU  supersede  the  question  first 
made,  together  with  all  subsidiary  and  incidental  questions  con- 
nected with  it,  and  must  be  first  put  and  decided ;  for  if  the 
debate  or  consideration  of  that  subject  were  allowed  to  proceed, 
it  might  continue  through  the  day,  and  thus  defeat  the  order. 

1509.  But  this  motion,  to  entitle  it  to  precedence,  nuist  be  for 
the  orders  generaDy,  if  there  is  more  than  one,  and  not  for  any 
particular  order ;  if  decided  in  the  affirmative,  the  first  question  is 
suppressed,  and  the  orders  must  be  read  and  gone  through  \\  ith  in 
the  order  in  which  they  stand ;  if  in  the  negative,  the  resolution  of 
the  house  is  a  discharge  of  the  orders,  so  far  as  they  interfere  with 
the  consideration  of  the  subject,  then  before  it,  and  entitles  that 
subject  to  be  first  disposed  of. 

1510.  Besides  the  privileged  questions  above  mentioned,  wliich 

»  Cong.  Globe,  XVIII.  653. 


586  LEGISLATIVE    ASSEMBLIES.  [PaRT    VI. 

are  each  the  subject  of  a  special  order,  a  legislative  assembly  may 
provide  by  a  general  rule  or  order,  that  certain  classes  of  questions, 
Avhen  they  arise,  shall  be  privileged  in  a  particular  manner.  An 
instance  of  a  privileged  question  of  this  kind  is  furnished  by  the 
rules  and  orders  of  the  house  of  representatives  in  congress,^  in 
regard  to  the  motion  to  reconsider,  which  is  thereby  declared  to 
take  precedence  of  all  other  questions,  except  a  motion  to  ad- 
journ. 

1511.  Orders  of  the  day,  according  to  the  present  practice,  are, 
in  general,  the  only  privileged  questions ;  if,  however,  any  pecuUar 
order  should  be  adopted,  in  l-egard  to  a  particular  business,  either 
as  to  the  time  or  the  manner  of  considering  it,  that  question  would 
become  a  privileged  question,  agreeably  to  the  terms  of  the  order. 
Thus,  on  the  5th  of  December,  1640,  in  the  house  of  commons,  a 
particular  day  was  "  peremptorily  appointed  for  the  debate  of  the 
subjects' property  in  their  goods;"  and  it  was  at  the  same  time 
ordered,  that  no  other  business  whatever  should  then  precede  that 
business,  and  that  the  speaker  should  "  put  the  house  in  mind  of 
this  order  so  soon  as  he  should  be  in  his  chair."  ^  So,  dm-ing  the 
proceedings  in  the  house  of  commons  on  the  reform  biU,  Lord 
Al+horp  gave  notice,  that  in  consequence  of  the  length  of  time  that 
had  been  occupied  by  the  debate  in  the  committee  of  the  whole  on 
the  bill,  he  should  move  that  on  such  days  as  the  committee  is 
appointed  for,  that  order  of  the  day  should  take  precedence  of  aU 
business  whatever,  including  petitions.  This  motion  was  not  per- 
sisted in,  but  no  objection  appears  to  have  been  made  to  it  as 
irregular.'^ 

1512.  In  the  two  houses  of  congress,  besides  orders  of  the  day, 
which  are  established  'in  virtue  of  the  common  parliamentary  law, 
and  privileged  questions,  which  are  made  so  by  a  general  rule, 
orders  of  the  above  description  are  occasionally  made,  which  have 
the  effect,  under  the  name  of  special  orders  or  assignments,  to  over- 
ride or  take  precedence  of  all  other  business  whatsoever.^  Orders 
of  this  kind  may  be  made  in  the  manner  agreed  upon,  and  pointed 
out  in  the  rules,  or  by  the  ordinary  major  vote.  In  the  house  of 
representatives,  it  is  provided  by  a  rule,  that  the  order  of  business 
as  established  by  the  rules,  shall  not  be  changed  except  by  a  vote 
of  at  least  two  thirds ;  and,  in  that  assembly,  a  special  order,  (which, 
to  have  the  effect  above  mentioned,  must  necessarily  change  the 

1  Cong.  Globe,  XX.  466.  *  J-  of  C.  IV.  609;  .1.  of  H.  15th  Cong.  1st 

2  Rusliwortli,  IV.  85,  99.  Sess.  167;  Same,  23d  Cong.  1st  Seis.  786. 
8  Hans.  (3),  V.  89. 


Chap.  VL]  special  orders.  587 

established  order  of  business,^  and  operate  to  suspend  ihe  rules 
relating  to  business,-)  made  for  that  purpose,  requires  a  majority  of 
two  thirds ;  '■'  if  made  by  a  majority  only,  the  order  so  made  will 
only  have  precedence  over  other  business  of  the  same  class  not 
made  special."*  Of  two  special  orders,  for  the  consideration  of 
dilferent  topics  at  the  same  time,  the  one  first  made  is  entitled  to 
precedence  over  the  other/'  The  business,  which  is  thus  made  the 
subject  of  a  special  order,  is  to  be  proceeded  with  at  the  aj)pointed 
time,  and  may  be  finished  by  doing  whatever  may  be  necessary  to 
that  end,  under  the  order.*^ 

1513.  On  the  arrival  of  the  time  set  apart  for  the  consideration 
of  a  special  order,  the  business  then  in  hand  is  not  thereby  sus- 
pended, as  a  matter  of  course,"  but  the  presiding  officer  may,  if 
necessary,  interrupt  the  member  speaking,  and  announce  the  arrival 
of  the  time  assigned  for  the  consideration  of  the  special  order.*^  He 
then  waits  for  a  motion  relating  to  it,  either  to  proceed  with,  or  to 
postpone ;  inasmuch  as  the  assembly  cannot  be  constrained,  by  any 
resolution  previously  taken,  to  proceed  with  a  particular  matter  at 
a  given  time,  and  may  not  then  be  in  a  situation  to  go  on  with  the 
business  in  question.  But  whether  announced  by  the  presiding 
officer  or  not,  any  member  '-*  on  the  arrival  of  the  time  may  move, 
and  if  necessary,  may  take  the  floor  from  a  member  for  that  pur- 
pose, to  proceed  with,  or  to  postpone,  the  special  order.  If  pro- 
ceeded with,  it  may,  if  necessary,  occupy  the  rest  of  the  daily  sitting. 
If  postponed,  as  it  may  be,  by  the  ordinary  major  vote,''*  either 
before  '*  or  after '-  its  consideration  is  entered  upon,  it  comes  up  as 
the  special  order,  and  not  merely  as  a  subject  postponed,''^  at  the 
time  to  which  it  is  postponed. 

1514.  If  a  special  order  is  dropped,  that  is,  not  proceeded  A\ith 
at  aU,  (and  its  friends  have  the  residue  of  the  sitting  for  the  day  to 
move  it  in,)  it  is  not  thereby  dissolved,^^  but  comes  up  again  in  the 


I  J.  of  H.  27th  Cong.  3d  Sess.  855;  Cong.  XI.  935;    Same,  XIII.  224;    Same,  XV.  1164, 

Globe,  XII.  338.  1165. 

»  J.  of  H.  31st  Cong.  1st  Sess. '1096, 1112;  <>  J.  of  11.  24th  Cong.  1st  Sess.  882;  Cong. 

Cong.  Globe,  IV.  77.  Globe,  VIII.  587. 

»  J.  of  H.  23d  Cong.  1st  Sess.  785;  Cong.  lo  J.  of  H.  29th  Cong.  1st  Sess.  1170. 

Globe,  IV.  77.  "  J.  of  H.  20th  Cong.  2d  Sess.  162;  Same, 

•  Cong.  Globe,  VIII.  121.  29th  Cong.  1st  Sess.  1170;  Reg.  of  Deb.  IX. 
»  Cong.  Globe,  VIII.  325.  Part  2,  1756;  Cong.   Globe,  XV.  1164,  1165; 

•  Cong.  Globe,  XIII.  283.  Same,  XVII.  382,  383. 

'  Cong.  Globe,  XI.  935.  "  Cong.  Globe,  XIII.  122. 

•  .J.  of,H.  20th  Cong.  2d  Sess.  182;  Same,  "  Cong.  Globe,  VIII.  114. 
81st  Cong.  1st  Sess.  1096,  1112;  Cong.  Globe,  "  J.  of  H.  27th  Cong.  3S6. 


588  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

order  of  time ;  ^  and  when  proceeded  with,  and  while  it  is  executing, 
Qo  other  business,^  not  even  a  suspension  of  the  rules,"^  is  in  order. 
If  finished  before  the  time  for  adjournment  arrives,  the  business 
thereby  suspended  revives  again  and  proceeds  as  before  ;  if  un- 
finished at  the  time  of  an  adjournment,  and  no  other  disposition  of 
the  matter  is  made,  it  will  go  over,  by  means  of  the  adjournment, 
as  the  unfinished  business  of  the  day,  on  which  the  adjournment 
takes  place,  and  as  such  it  is  entitled  to  take  precedence  of  another 
special  order  ^  for  that  day. 

1515.  The  questions,  above  described,  will  take  precedence  in 
the  following  order.  When  the  time  arrives,  for  proceeding  with 
the  orders  of  the  day,  according  to  the  rule  or  the  custom,  or  the 
particular  order  of  the  assembly,  they  will  be  entitled  to  precedence, 
in  the  manner  above  described,  over  ordinary  business.  Merely 
privileged  questions  will  take  such  precedence,  among  themselves, 
as  they  are  entitled  to  by  the  rules  of  the  assembly  creating  them ; 
but,  in  general,  when  one  privileged  question  is  under  consideration, 
it  cannot  be  displaced  to  make  way  for  another  of  the  same  Idnd.^ 
Both  these  must  give  place  to  a  special  order  when  the  time  arrives 
for  its  consideration.  AU  these,  however,  are  mere  matters  of  busi- 
ness, and  must  yield  to  a  question  of  privilege.  The  motion  to 
adjourn,  from  its  very  nature,  though  it  is  commonly  so  provided 
by  a  rule,  takes  precedence  of  them  all,  and  must  be  first  put  to  the 
question. 

1516.  The  presiding  officer  is  not  precisely  bound,  except  in  vir- 
tue of  some  rule  of  the  assembly,  as  to  what  bills  or  other  matters 
shall  be  fii-st  taken  up,  but  is  left  to  his  own  discretion,  unless  the 
assembly,  on  a  question,  decide  to  take  up  a  particular  subject;  a 
settled  order  of  business,  however,  is  necessary  for  his  government, 
and  to  restrain  individual  members  from  calling  up  favorite  meas- 
ures, or  matters  under  their  special  patronage,  out  of  their  just  turn. 
It  is  useful,  also,  for  directing  the  discretion  of  the  assembly,  when 
it  is  moved  to  take  up  a  particular  matter  to  the  prejudice  of  others 
having  a  prior  right  to  its  attention,  in  the  general  order  of  business.^ 
But  this  depends  entirely  upon  the  nature  of  each  assembly,  and 
upon  the  character  and  importance  of  its  business.    In  every  assem- 

1  J.  of  H.  26th  Cong.  1st  Sess.  253.  »  J.  of  H.  32d  Cong.  1st  Sess.  969;  Cong. 

2  J.  of  H.  31st  Cong.  1st  Sess.  254,  333.  Globe,  XXL  1535. 

8  Cong.  Globe,  XVII.  439.  «  Jeffersoa's  Manual,  Sec.  XIV. 

*  Regrof  Deb.  XL  Part  1,  919;  Cong.  Globe,  . 

vm.  121. 


ClIAP.    VL]       GENERAL   COURSE   AND    ORDER   OF  PROCEEDING.  589 

bly,  the  business  of  which  is  considerable,  an  order  of  business  is 
indispensable.  In  the  house  of  commons  this  is  established  partly 
by  custom,  and  partly  by  rule.  The  distinction  is  there  recognized 
between  private  and  public  business.  In  both  houses  of  congress, 
there  is  an  established  order  of  business.  In  the  house  of  represent- 
atives, particular  days,  and  particular  hours  of  each  day,  are  de- 
voted to  the-  consideration  of  particular  classes  of  business.  The 
same  general  purpose  is  further  promoted  in  that  assembly  by 
variously  restricting  debate.  This  subject  will  be  considered  at 
length  in  the  fifth  section  of  this  chapter. 


Section  III.     Of   Motions   relating   to  the    General    Course 

AND  Order  of  Proceeding. 

1517.  Motions  connected  with  the  general  course  of  business 
and  proceeding,  when  moved  in  reference  to  any  pending  matter, 
imply  a  necessity  for  their  immediate  determination,  and  conse- 
quently supersede  or  interrupt  the  subject  under  consideration  at 
the  time,  and  are  to  be  first  put  to  the  question. 

1518.  The  most  important  motion  of  this  description  is  the 
motion  to  adjourn,  which  of  necessity  takes  precedence  of  all  other 
pending  questions,  and  may  be  made  and  put  at  any  time,  ex- 
cept immediately  after  the  same  motion  has  been  made  and  neg- 
atived. 

1519.  A  motion  of  this  kind,  which  was  in  use  when  the  sittings 
of  parliament  were  confined  to  the  daytime,  was,  that  candles  be 
brought  in,  which,  of  course,  required  an  immediate  determination. 
At  that  time,  it  was  the  invariable  custom  to  bring  every  debate  to 
a  close  with  the  sitting  for  the  day  on  which  it  took  place;  so 
that  the  motion  for  candles  was  sometimes  looked  upon  as  equiv- 
alent to  a  motion  to  prolong  the  debate,  and  was  not  always  de- 
termined, without  discussion  and  division.  In  more  modern  times, 
however,  it  seldom  happens  that  the  debate  on  any  question  of 
importance  is  concluded  on  the  same  day ;  and  the  sittings  of  both 
houses  now  take  place  almost  wholly  in  the  night  time ;  and  in 
the  house  of  commons  it  is  a  standing  order,  first  adopted  in 
1717,  "  that  when  the  house,  or  any  committee  of  the  whole  house, 
shall  be  sitting,  and  daylight  be  shut  in,  the  sergeant-at-arms  do 
talie  care  that  candles  be  brought  in  without  any  particular  order 
for  that  purpose."  ^ 

1  Mav,  222. 

50 " 


590  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

1520.  It  would  be  obviously  impossible,  from  the  very  nature  of 
motions  of  this  description,  to  enumerate  all  that  might  occm- ;  the 
following  are  some  of  the  more  common,  and  will  serve  to  give 
an  idea  of  the  general  character  of  the  whole,  namely :  that  mes- 
sengers from  the  other  house,  having  been  announced,  be  called  in ; 
that  a  particular  member  be  first  heard,  where  two  or  more  rise  at  or 
about  the  same  time,  and  the  speaker's  determination  as  to  which 
of  them  shall  speak,  is  not  acquiesced  in;  that  a  particular  mem- 
ber withdraw  on  a  matter  arising  or  being  brought  forward  which 
affects  him  personally  ;  that  a  member  be  allowed  to  speak  sitting ; 
that  a  question  ])e  divided,  either  on  the  suggestion  of  a  member, 
or  on  motion ;  ^  that  a  member  be  allowed  to  speak  a  second  time 
in  the  same  debate ;  and  that  there  be  a  call  of  the  house.  To  the 
same  head  belong,  also,  resolutions  exonerating  the  speaker  from  a 
charge  of  partiality,^  or  impugning  his  conduct,^  or  charging  the 
clerk  with  misconduct*  in  regard  to  a  particular  matter  then  under 
consideration. 


Section  IV.     Op  the  Order,   Succession,  and    Precedence,   of 
Motions,  as  established  by  Rule  in  this  Country. 

1521.  In  many  of  the  American  legislative  assemblies,  it  is  the 
practice,  by  a  special  rule,  to  specify  both  what  motions  shall  be 
used,  and  the  order  in  which  they  are  to  be  moved,  for  the  disposi- 
tion of  the  business  before  the  assembly.  The  rule  of  the  house  of 
representatives  of  the  United  States,  which  has  been  extensively 
copied  in  other  legislative  bodies,  is  as  follows :  "  When  a  question 
is  under  debate,  no  motion  shall  be  received  but  to  adjourn,  to  he 
on  the  table,  for  the  previous  question,  to  postpone  to  a  day  certain, 
to  commit  or  amend,  to  postpone  indefinitely ;  which  several  mo- 
tions shall  have  precedence  in  the  order  in  which  they  are  arranged." 
In  the  particular  application  of  this  rule,  the  following  points  are 
to  be  observed. 

1522.  I.  A  subject  is  sufficiently  under  debate  to  come  properly 
within  this  rule,  when  it  has  been  proposed  from  the  chair  as  a 
question  for  the  decision  of  the  house. 

1523.  II.  The  motions  enumerated  in  the  rule  are  understood 
and  applied  in  their  common  parliamentary  sense,  and  do  not  ad- 
mit of  any  other  meaning  or  extent.     Thus  the  first  three,  namely, 

1  Coram.  Jour.  XXXH.  707.  *  J.  of  H.  26th   Cong.  1st  Scss.  1242.     See 

«  Hans.  (1),  X.  1100  to  1170.  also,  Cong.  Globe,  XII.  244. 

«  J.  of  H.  3l3t  Cong.  1st  Sess.  713,  716,  738. 


Chap.  VI.]     general  course  and  order  of  proceeding.  591 

to  adjourn,  to  lie  on  the  tfiblc,  and  for  the  previous  question,  may 
be  made  in  their  simplest  form,  and  do  not  admit  of  any  amend- 
ment or  alteration ;  the  motion  to  postpone  to  a  day  certain  may 
be  amended  so  as  to  substitute  one  day  for  another;  the  motion  to 
commit  may  bear  the  form  of  recommitment,  and  be  accompani(id 
or  not  with  instructions ;  the  motion  to  amend  is  su-ceptible  of 
alteration  by  amendment;  but  the  motion  to  postpone  indefmilely, 
is  already  in  its  simplest  form,  and  will  not  admit  of  any  amend- 
ment. 

1524.  III.  These  motions,  except  as  is  stated  in  the  preceding 
paragraph,  cannot  be  applied  to  one  another,  and,  therefore,  a  mo- 
tion to  amend  cannot  be  ordered  to  lie  on  the  table,  or  be  indefi- 
nitely postponed,  by  itself,  but  coheres  to  th'e  motion  which  it  is 
proposed  to  amend,  and  may  be  ordered  with  it  to  lie  on  the  table, 
or  to  be  postponed. 

1525.  IV.  When  one  of  these  motions  is  made,  none  of  those 
which  stand  behind  it  on  the  list  can  any  longer  be  made,  w^hile  it 
is  pending,  and  it  supersedes  for  the  time  being  all  those  which 
are  then  made,  and  must  be  first  put  to  the  question.  If  this  mo- 
tion should  be  decided  in  the  negative,  the  next  preceding  pending 
motion  is  to  be  put,  and  so  on  until  some  one  prevails,  or  the  prin- 
cipal question  is  put.  Thus,  if  a  question  is  pending,  which  it  is 
moved  to  postpone  indefinitely,  and  then  a  motion  is  made  to 
amend,  this  latter  motion  supersedes  the  former,  and  is  itself  super- 
seded by  a  motion  that  the  principal  question  be  ordered  to  lie  on 
the  table.  When  this  motion  is  made,  none  of  those  standing  be- 
hind it  can  be  made,  but  it  may  itself  be  superseded  by  that  which 
stands  before  it  on  the  list.  The  pending  questions  are  then  to 
be  taken  in  the  same  order  in  which  they  were  moved :  first,  the 
motion  pending  to  lie  on  the  table ;  if  that  is  negatived,  then,  sec- 
ond, the  motion  to  amend ;  and  if  that  is  negatived,  then,  thii-d,  the 
motion  to  postpone  indefinitely  ;  and  if  this  does  not  prevail,  then, 
lastly,  the  principal  question. 

1526.  V.  The  motion  for  the  previous  question  is  an  exception 
in  one  respect  to  this  proceeding:  if  decided  in  the  affirmative,  the 
main  question  is  to  be  taken  at  once  ;  if  in  the  negative,  the  main 
question  is  suspended  for  the  day,  so  that  in  whichever  way  it  is 
decided,  it  disposes  of  the  main  question  for  the  time  being,  and 
leaves  no  other  question  to  be  taken. 


592  LEGISLATIVE    ASSEMBLIES.  [PaRT   VL 


Section  V.    Of  the  General  Course  or  Order  of  Business  in 

a  Legislative  Assembly. 

1527.  An  established  order  of  business  is  so  necessary  in  every 
assembly,  to  the  orderly  despatch  of  what  comes  before  it,  that 
such  an  order  prevails  to  a  greater  or  less  extent  in  every  assembly ; 
and,  in  some,  it  gives  rise  to  a  very  complicated  and  artificial 
system  of  procedure.  The  order  of  business  established  by  each 
assembly  vAM,  undoubtedly,  be  pecuUar  to  itself.  The  systems 
adopted  by  the  two  most  important  and  celebrated  legislative 
bodies  in  the  world,  the  house  of  commons  in  England,  and  the 
house  of  representatives  of  the  United  States  in  this  country,  which 
are  very  different  from  each  other,  are  respectively  as  follows. 

1528.  In  the  house  of  commons,  "  The  house  proceeds  each 
day  with,  1.  Private  business;  2.  Public  petitions;  3.  Giving  no- 
tices of  motions ;  4.  Motions  for  leave  of  absence ;  5.  Unopposed 
motions  for  returns ;  6.  Orders  of  the  day  and  notices  of  motions 
as  set  down  in  the  order  book.^ 

1529.  According  to  the  present  established  order  of  business  in 
the  house  of  representatives  of  the  United  States,  at  the  hour  fixed 
for  the  daily  meeting  of  the  house,  the  speaker  takes  the  chair,  and, 
as  soon  as  a  quorum  appears,  causes  the  journal  of  the  preceding 
day  to  be  read.  Committees  are  then  called  upon  for  reports,  the 
call  being  commenced  where  it  was  left  off  on  the  preceding  day, 
except  on  each  alternate  Monday,  and  on  Fridays  and  Saturdays. 
One  hour  is  devoted  in  this  way,  and  it  is  then  in  order  to  move  to 
proceed  to  the  business  on  the  speaker's  table,  which  being  decided 
affirmatively,  that  business  is  disposed  of  accordingly.  Several 
days  often  intervene  between  motions  to  proceed  with  the  business 
on  the  speaker's  table.  The  motion  to  go  into  committee  of  the 
whole  on  the  state  of  the  Union  is  in  order  at  any  time,  and  is 
sometimes  submitted  immediately  after  the  journal  is  read,  but 
usually  after  one  hour  has  been  devoted  to  the  reports  of  commit- 
tees ;  and  this  motion  being  agi-eed  to,  the  house  generally  remains 
in  committee  of  the  whole  until  just  before  the  adjournment  for 
the  day.  On  each  alternate  Monday,  the  regular  order  of  business, 
as  soon  as  the  journal  is  read,  is  the  calling  of  the  States  for  resolu- 
tions. But  motions  to  suspend  the  rules,  being  only  in  order  every 
Monday,  the  day  is  usually  consumed  in  the  consideration  of  such 

1  May,  R.  0.  etc.  .    . 


Chap.  VL]     general  course  and  order  of  proceeding.  593 

motions,  to  the  exclusion  of  the  regular  order  of  business,  unless,  as 
often  happens,  the  house  resolves  itself  into  the  committee  of  the 
whole.  Fridays  and  Saturdays  are  set  apart  for  the  consideration 
of  private  business,  and  usually,  if  there  are  no  private  bills  on  the 
speaker's  table,  or  special  order,  the  house  resolves  itself  into  a  coni- 
miltee  of  the  whole  on  the  private  calendar.  The  business  on  the 
speaker's  table,  when  proceeded  with,  is  taken  up  in  the  following 
order:  1.  Messages  and  other  executive  communicalions;  2.  Mes- 
sages from  the  senate,  and  amendments  proposed  by  the  senate, 
to  the  bills  of  the  house ;  3.  Bills  and  resolutions  from  the  senate 
on  their  fost  and  second  reading;  4.  Engrossed  bills,  and  bills 
from  the  senate  on  their  third  reading ;  5.  Bills  of  the  house,  and 
from  the  senate  on  their  engrossment;  and,  when  those  ai'C  dis- 
posed of,  6.  Orders  of  the  day. 

60* 


LAW  AND  PRACTICE 


ov 


LEGISLATIVE   ASSEMBLIES. 


TAET     SlXXn. 

OF    THE    FORMS    AND    METHODS    OF    PROCEEDING    IN 
A    LEGISLATIVE    ASSEMBLY. 


SECOND    DIVISION. 

ORDER    IN    DEBATE. 


1530.  The  rules  for  the  conduct  of  debate,  which  constitute  the 
subject  of  this  division  of  the  sixth  part,  divide  themselves  into  two 
branches,  namely :  first,  those  which  are  to  be  observed  by  members 
addressing  the  house ;  and,  second,  those  which  regard  the  behavior 
of  members  who  do  not  engage  in  the  debate.^  The  latter  branch 
is  of  comparatively  small  extent.  The  former,  under  which  alone 
the  subject  of  order  in  debate  is  usually  comprehended,  embraces 
three  general  inquiries,  namely :  first,  what  constitutes  a  debate ; 
second,  when  and  under  what  circumstances  a  member  may  adckess 
the  house ;  third,  what  may  or  may  not  be  said  by  a  member,  or 
inti-oduced  by  him  into  his  remarks,  in  addi-cssing  the  house.     The 

»  May,  248. 

■596) 


596  LEGISLATIVE   ASSEMBLIES.  [PaET  VI. 

j&rst  inquiry  relates,  also,  to  the  members  who  are  to  speak,  and,  to 
the  personal  deportment  of  members  in  speaking.  The  second  is 
embraced  under  the  three  rules,  that  a  member  can  speak  only  to  a 
question ;  not  more  than  once  ;  and  not  after  the  question  is  put  to 
the  house.  The  rules,  which  form  the  subject  of  the  thnd  inquiry 
relate  to  the  topics  to  be  introduced ;  to  the  sources  from  which  a 
member  spealdng  is  to  derive  the  matter  of  Ms  remarks  *,  the  preser- 
vation of  order  and  decorum  among  the  members ;  the  preservation 
of  harmony  among  the  several  branches ;  regularity  of  proceeding ; 
to  the  respect  due  from  the  members  to  the  assembly ;  and  to  the 
respect  due  to  existing  laws  and  institutions.  The  necessity  of 
enforcing  these  rules  leads  naturally  to  the  inquiry  as  to  the  pro- 
ceedings with  reference  to  disorderly  or  unparliamentary  lan- 
guage. 

1531.  The  foregoing  analysis  suggests  the  propriety  of  consider- 
ing the  several  subjects  which  fall  into  this  division  under  the  fol- 
lowing heads,  which  w^ill  each  form  the  matter  of  a  distinct  chapter, 
namely :  —  I.  What  constitutes  a  debate,  and  herein  of  the  mem- 
bers who  are  to  speak,  and  of  their  personal  deportment  while 
speakmg  ;  II.  Of  the  rule  that  no  member  is  to  speak,  unless  to  a 
question  akeady  pending,  or  to  introduce  a  question  ;  III.  Of  the 
rule  that  no  member  is  to  speak  more  than  once  to  the  same 
question ;  IV.  Of  the  rule  that  a  question  is  open  for  debate  until 
it  is  fully  put  on  both  sides  ;  V.  Of  the  rules  relating  to  relevancy 
in  debate ;  VI.  Of  the  rules  relating  to  the  som-ces  from  which  the 
statements,  introduced  by  a  member  in  debate,  are  derived ;  VII.  Of 
the  rules  relating  to  the  preservation  of  order,  decency,  and  har- 
mony among  the  members;  VIII.  Of  the  rules  relating  to  the 
preservation  of  the  harmony  and  independence  of  the  several 
branches  of  the  legislature  ;  IX.  Of  the  rules  relating  to  regularity 
of  proceeding ;  X.  Of  the  rules  relating  to  the  respect  due  from 
the  members  to  the  house  to  which  they  belong,  to  its  powers,  acts, 
and  proceedings,  and  to  the  government  and  laws  of  the  country ; 
XL  Of  proceedings  with  reference  to  disorderly  or  unparliamentary 
words,  or  irregularity  in  debate;  XII.  Rules  for  the  conduct  of 
members  present  in  the  house  during  a  debate. 


Chap.  L]  speaktnq  m  debate.  097 


CHAPTER  FIRST. 

WHAT  CONSTITUTES  A  DEBATE,  AND  HEREIN  OF  THE  MEMBERS 
WHO  ARE  TO  SPEAK,  AND  OF  THEIR  PERSONAL  DEPORTMENT 
WHILE   SPEAKING. 

1532.  When  a  motion  is  regularly  made  and  seconded,  and  pro- 
posed ^  as  a  question  from  the  chah",  "  every  member  is  then  at 
liberty  to  debate  with  freedom  upon  it,  and  to  agree  or  disagree  to 
it,  as  he  may  think  reasonable  "  and  proper.-  But,  though  the  latter 
part  of  this  principle  is  universally  true,  as  every  member  may 
agi'ee  or  disagree  to  whatever  question  is  put  to  the  house ;  the 
former  admits  of  an  exception  in  regard  to  those  questions,  which 
require  unanimous  consent.  Questions  of  this  description,  as,  for 
example,  on  giving  leave  to  withdraw  a  motion,-^  are  not  properly 
debatable,  at  least  on  the  part  of  the  negative ;  for  if  any  one 
member  objects,  the  question  is  as  effectually  negatived,  as  if  a 
majority  of  the  members  were  opposed  to  it ;  so  that  debate  on  that 
side  would  be  a  mere  w^aste  of  time. 

1533.  The  term  debate,  in  its  strictest  sense,  is  applicable  only  to 
what  is  said  on  the  one  side  or  the  other  of  a  question  which  the 
house  is  to  decide  by  a  vote.^  In  a  broader  sense,  it  embraces  every 
thing  which  is  said  in  the  house  by  members,  whether  upon  a  ques- 
tion pending,  or  in  reference  to  any  other  proceeding,  matter,  or 
business  w  hatever.  The  rules  of  order,  by  which  the  speaking  of 
members  is  regulated,  together  with  the  exceptions  to  those  rules, 
having  relation  to  debate  in  its  broadest  signification,  the  subject 

*  Cong.  Globe,  VIII.  150.  particular  manner.    All  these  different  kinds 

*  Comm.  Deb.  VIII.  201.  of  restrictions  are  found  in  the  rules  and  orders 

*  Hans.  (1),  XIX.  437.  of  the  lower  branch   of  congress.      In   that 

*  In  the  rules  and  orders  of  the  legislative  body,  motions  to  adjourn,  to  fix  a  day  to 
assemblies  of  this  country,  debate  is  variously  wliich  the  house  shall  adjourn,  to  lie  on  the 
restricted.  Sometimes  it  is  precluded  as  to  table,  and  for  the  previous  question,  all  ques- 
certain  motions,  without  regard  to  tlie  subject;  tions  relating  to  the  priority  of  business  to  be 
sometimes  it  is  proliibited  as  to  certain  topics,  acted  upon,  and  all  incidental  (fucstious  o' 
•without  regard  to  the  manner  in  which  they  order  arising  after  the  previous  question  Is 
arise;  and  sometimes  the  restriction  is  attach-  moved,  are  to  be  decided  without  debate, 

ed  to  certain  topics,  provided  they  arise  in  a 


598  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

of  order  in  debate  is  now  to  be  considered  in  the  most  extended  as 
well  as  the  narrowest  sense  of  the  term. 

1534.  It  is  not  necessaiy,  in  order  to  render  words  disorderly,  that 
they  should  be  uttered  in  debate,  strictly  so  called ;  if  used  in  any 
parliamentary  proceeding,  as  in  making  a  motion,  or  answering  a 
question,  or  stating  »  fact,  or  even  in  reading  from  a  book  or  paper,^ 
they  are  equally  subject  to  the  animadversion  of  the  house,  as 
disorderly.  All  language,  not  addressed  to  the  house,  in  a  par- 
liamentary course,  must  be  considered  as  mere  noise  and  disturb- 
ance. 

1535.  When  a  member  desires  to  addi-ess  the  house,  either  in 
reference  to  a  pending  question,  or  for  any  other  purpose,  he  must 
first  obtain  possession  of  the  floor,  in  the  manner  aheady  adverted 
to,  when  considering  the  subject  of  motions.  K  one  member  only 
rises  to  speak,  he,  of  course,  is  to  be  heard.  K  two  or  more  rise  at 
about  the  same  time,  and  claim  the  attention  of  the  house,  the 
general  rule,  as  to  which  of  them  shall  speak,  assigns  the  preference 
to  him  who  was  first  up,  to  be  determined  by  the  speaker  or  the 
house.  In  the  application  of  this  rule,  however,  there  are  certain 
excepted  cases  in  which  one  member  has  a  right  to  proceed  in 
preference  to  others,  and  certain  other  excepted  cases,  in  which,  by 
the  indulgence  of  the  house,  though  not  as  a  matter  of  right,  it  is 
customary  to  assign  the  preference  on  other  grounds.  The  excepted 
cases  of  the  first  land  occur,  when  the  subject,  to  which  a  member 
rises  to  speak,  is  one  of  paramount  importance,  as  a  matter  of  privi- 
lege, or  a  question  of  order;  in  which  cases,  he  is  entitled  to  be 
heard  in  preference  to  other  members.  These  cases  must  not  be 
confounded  with  those  where  a  member  merely  rises  to  propose  a 
motion  which  takes  precedence  of  the  motion  originally  made,  in 
which  case  he  is  not  entitled  of  course  to  preference  over  other 
members.  The  excepted  cases  of  the  latter  kind  are  those  of, 
1st,  the  original  mover  of  a  proposition,  on  its  being  first  debated; 
2d,  a  new  member  on  his  first  rising  to  address  1  he  house ;  and,  3d, 
on  resuming  an  adjourned  debate,  the  member  who  last  rose  to  speak 
when  the  debate  was  adjourned.  These  classes  of  cases,  though 
established  with  peculiar  reference  to  the  practice  of  the  two  houses 
of  the  British  parfiament,  embrace  substantially  the  grounds  upon 
which  preferences  are  usually  allowed  in  awarding  the  floor  in  our 
legislative  assemblies,  and  will  constitute  the  matter  of  the  first 
section  of  this  chapter,  which  will  be  concluded  with  a  second  sec  • 

1  Hans.  (3),  XVL  217.     See  also  Reg.  of  Deb.  IV.  Part  L  1420. 


Chap.  L]  speaking  in  debate.  599 

tion  concerning  the  general  deportment  of  members  in  speaking. 
There  are  also  other  grounds  upon  which  preferences  are  allowed, 
irrespective  of  the  peculiar  character  of  the  parties. 


Section   I.      Of   the    Grounds    upon    which    Preferences   are 

ALLOWED   IN   ASSIGNING   THE    FlOOR   TO    PARTICULAR    MEMBERS. 

Exception  L     The  orig-inal  Mover  of  a  Proposition  on  its  being 

first  debated. 

1536.  In  the  house  of  lords,  it  was  said  by  Lord  Bathurst,  in  the 
year  1733,  that  "  when  any  lord  makes  a  motion,  upon  which  there 
follows  any  order  or  resolution,  and  a  day  is  appointed  for  taking 
that  order  or  resolution  into  consideration,  it  has  always  been  the 
custom,  out  of  complaisance  to  the  lord  who  made  the  motion,  to 
hear  him  first;  because  it  is  to  be  expected  that  he  has  something 
to  say,  or  some  further  motion  to  make,  in  consequence,  or  in 
explanation,  of  the  motion  he  had  made ; "  ^  and,  on  another  occa- 
sion, in  1781,  the  lord  chancellor  (Thurlow)  observed,  "that  it  was 
always  customary,  when  any  bill  was  brought  into  that  house,  for 
abrogating  an  old  law,  or  enacting  a  new  one,  for  the  person  who 
moved  the  order  of  the  day,  if  the  bill  had  not  been  previously 
debated  in  some  former  stage,  to  assign  his  reasons,  (that  is,  the 
necessity,  expediency,  or  policy,  of  the  alteration,)  for  \vashing  to 
change  the  law,  in  the  particular  instance."  - 

1537.  In  the  house  of  commons,  a  similar  usage  appears  to  pre- 
vail :  thus,  where  on  the  order  of  the  day  for  the  second  reading  of 
a  bill  being  read,  a  motion  was  made  that  the  biU  be  now  read  a 
second  time ;  and  a  member  rose  to  oppose  the  motion,  the  speaker 
(Mr.  Abbott)  "suggested  the  propriety  of  first  hearing  the  member 
who  brought  in  the  biU  in  support  of  it  as  being  consonant  to  prac- 
tice in  cases  where  there  was  a  difference  of  opinion  entertained  ;  " 
and  this  course  was  accordingly  adopted.^ 

1538.  According  to  the  practice  which  prevails  in  our  legisla- 
tive assemblies,  the  mover  of  a  proposition  having  obtained  the 
floor  for  that  purpose,  and  having  subinitted  his  proposition,  is  en- 
titled to  retain  possession  of  the  floor,  until  his  motion  is  seconded 
and  stated  by  the  chair ;  and  then  to  proceed  with  a  speech  or 


1  Lords'  Deb.  IV.  139.  »  Pari.  Reg.  LXXII.  265 

»  Pari.  Reg.  XIX.  186, 190. 


( 
600  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

make  a  motion,  or  do  whatever  else  can  only  be  done  by  a  member 
in  possession  of  the  floor,  unless  he  voluntarily  relinquishes  it,  or 
does  some  act  indicative  of  his  intention  to  abandon  the  floor.^ 
Thus,  where  the  mover  of  a  proposition,  although  he  had  remained 
standing  whilst  the  clerk  was  reading  it,  did  not  claim  the  floor 
until  after  another  member  had  addressed  the  chair,  made  a  motion, 
and  the  question  thereon  had  been  stated,  it  was  held  on  appeal, 
that  the  first  had  thereby  lost  his  right  to  the  floor ;  ^  so,  where  one 
having  the  right  to  the  floor,  instead  of  claiming  it,  turned  from  the 
speaker,  and  walked  up  the  aisle,  whereupon  another  member  was 
recognized  as  entitled  to  the  floor,  the  former  was  held  thereby  to 
have  lost  it ;  ^  and  so  where  a  member  having  a  right  to  the  floor, 
instead  of  claiming  it,  when  the  subject  was  first  introduced,  did 
not  do  so  until  several  members  had  risen,  and  a  modification  of 
the  pending  resolution  had  taken  place,  it  was  held  that  he  had 
lost  his  right  to  the  floor ;  *  but  resuming  one's  seat  merely,  whilst 
the  clerk  is  reading  his  proposition,  unless  it  is  done  with  an  in- 
tention to  abandon  the  floor,  and  suffering  another  to  address  the 
chair,  before  the  claim  is  renewed,  is  not  ordinarily  supposed  to  be 
equivalent  to  such  an  abandonment.-^ 

1539.  The  reporter  of  a  measure,  from  a  committee,  is  entitled  to 
the  floor,  not  only  as  the  mover  of  a  proposition,  to  make  his  re- 
port and  take  the  initiatory  steps  for  its  consideration,  but  also  sub- 
sequently to  give  the  measure  in  question,  a  biU,  for  example, 
such  disposition  as  the  committee  may  have  directed.*^  The  same 
privilege  belongs  also  to  the  member  upon  whose  motion  a  com- 
mittee, as,  for  example,  the  committee  of  the  whole,  is  discharged 
from  the  further  consideration  of  a  given  measure,  and  the  same 
is  thereby  brought  directly  before  the  house."  On  the  other  hand, 
a  member  is  not  entitled,  as  a  matter  of  course,  to  the  floor,  on 
a  bill  or  other  measure  ordered  to  be  reconsidered,  even  though 
the  reconsideration  takes  place  for  the  purpose  of  enabhng  the 
mover  to  make  a  specific  amendment,  which  is  read  to  the  house 
for  information.^ 

1540.  If  the  subject  thus  introduced  is  not  at  once  considered, 

»  J.  of  H.  31st  Cong.  1st  Sess.  1336 ;  Cong.         » J.  of  H.  21st  Cong.  1st  Sess.  758.    But  see 
Globe,  XX.  238,  261.  Cong.  Globe,  X.  212. 

2  J.  of  H.  24th  Cong.  1st  Sess.  749;  Cong.  «  j.  of  H.  27th  Cong.  3d  Se»s.  211. 

Globe.  XX.  389.  i  J.  of  H.  30th  Cong.  2d  Sess.  247;  Cong. 

3  .1.  of  H.  29th  Cong.  1st  Sess.  366,  641.  Globe,  XX.  260,  261. 

*  Beg,  of  Deb.  XIL  Part  2,  2178,  2179.  «  J.  of  H.  26th  Cong.   1st  Sess.  246;  Cong. 

Globe,  Vin.  153, 155. 


Chap.  I.]  speaking  in  debate.  COl 

but  goes  over  to  some  future  day,  whether  by  mere  lapse  of  time, 
or  by  adjournment  of  the  house,  or  by  postponement  of  any  kind, 
whenever  it  is  brought  forward  again,  the  same  persons  will  be 
entilled  to  the  floor,  and  to  proceed  in  the  same  manner,  as  if  the 
business  had  been  proceeded  with  when  it  was  originally  intro- 
duced. If  Ihe  mover  of  the  proposition  chooses,  he  may  waive  his 
privilege  in  the  first  instance,  and  close  the  debate.^ 

1541.  Whether,  and  to  what  extent,  the  right  to  the  floor  will  be 
restrained,  extended,  or  regulated,  by  custom  or  rule,  in  any  par- 
ticular assembly,  must,  of  course,  depend  upon  the  size,  the  amount 
of  business,  and  the  degree  of  competition  which  exists  among  the 
members,  of  each  assembly.  In  the  house  of  representatives  of 
congress,  it  is  provided  by  rule,  that  a  member,  reporting  the  meas- 
ure under  consideration  from  a  committee,  may  open  and  close 
the  debate ;  and  this  privilege  is  so  strictly  regarded,  that  it  even 
overrides  the  previous  question.  In  the  same  body,  also,  it  is 
provided  by  rule  that  the  mover,  proposer,  or  introducer  of  the  mat- 
ter pending  shall  be  permitted  to  speak  in  reply,  after  every  mem- 
ber choosing  to  speak  shall  have  spoken. 


Exception  II.     A  new  Member^  on  his  first  rising  to  address  the 

House. 

1542.  It  is  a  common  courtesy  in  both  houses  of  parliament, 
when  several  members  rise  at  once,  for  those  who  have  before  ad- 
dressed the  house  in  debate,  to  give  way  to  a  new  member  who 
has  not  yet  spoken.  If  several  new  members  should  happen  to 
claim  the  attention  of  the  house  at  the  same  time,  the  point  of 
precedence  could  only  be  settled  by  an  application  of  the  ordinary 
rule.  In  our  legislative  assembhes,  though  new  members  are 
always  treated  with  courtesy  and  kindness,  and  with  some  degree 
of  indulgence,^  there  is  no  custom  or  rule  in  their  favor  as  to  the 
time  or  manner  of  speaking. 

>  Cong.  Globe,  XI.  192.  «  Cong.  Globe,  HI.  264. 

51 


602  LEGISLATIVE   ASSEMBLIES.  [PaRT  VI. 


Exception  III.    The  Member  who  rose  last  to  speak,  when  the  Debate 

was  adjourned. 

1543.  It  appears  to  be  the  usual  practice  in  the  house  of  com- 
mons, on  resuming  an  adjourned  debate,  to  give  the  preference,  in 
addressing  the  house,  to  the  member  who  rose  the  last  to  speak 
when  the  debate  was  adjom-ned.  According  to  the  practice  in  our 
legislative  assemblies,  a  member  who  is  speaking,  and  gives  way  to 
another  to  move  an  adjom-nment  of  the  house,  or  a  postponement,  or 
that  the  committee  of  the  whole  rise,  which  takes  place,  is  entitled 
to  the  floor  to  proceed  with  his  debate  when  the  subject  is  again 
brought  forward.^  The  same  effect  is  produced  where  the  member 
spealdng,  not  having  finished  his  speech,  himself  makes  the  motion 
to  adjourn,  or  to  postpone,  or  that  the  committee  rise.  So,  the  floor 
being  unoccupied,  the  member  upon  whose  motion  an  adjournment 
or  postponement  takes  place,  or  the  committee  rise,^  will  be  entitled 
to  the  floor  upon  renewing  the  debate. 


Exception  IV.     Members  entitled  to  the  Floor  on  grounds  of  Pref- 
erence, irrespective  of  their  peculiar  Character. 

1544.  In  the  foregoing  cases,  the  floor  is  adjudged  to  one  member 
in  preference  to  others,  on  the  ground  of  the  peculiar  character  in 
which  the  former  addresses  the  house.  There  are  others,  also,  in 
which  the  grounds  of  preference  do  not  depend  upon  the  peculiar 
character  of  the  member  to  whom  the  floor  is  assigned,  but  because 
the  member  or  members  competing  for  the  possession  of  the  floor 
are  not  in  a  proper  situation  to  claim  it.  The  principal  cases  of 
this  description  are  those  in  which  the  member  addressing  the  chair 
remains  sitting  and  does  not  rise  from  his  seat  at  aU ;  '^  where  the 
member  rises  from  the  area  in  front  of  the  chair,  or  from  one  of  the 
aisles,  and  not  from  a  seat,^  though  it  is  not  necessary  that  he 
should  occupy  his  own,  but  any  seat  is  sufficient  for  the  purpose  ;  ^ 
or  where  a  member,  having  already  spoken  in  the  debate,  cannot  be 
permitted  to  speak  again  or  to  make  a  motion  ^  so  long  as  any 

1  J.  of  H.  24th  Cong.  1st  Sess.  749;  Reg.  of        <  Cong.  Globe,  VIII.  68;  Same,  XIIL  677. 
Deb.  IX.,  L  462;  Cong.  Globe,  III.  264;  Same,         b  Cong.  GloI)e,  VIIL  150;  Same,  XL  353. 
VIIL290;  Same,  510.  «  Cong.    G'ol.c,   XIII.   385;    Same,  XVIIl 

2  Cong.  Globe,  XVI.  773.  519. 
s  J.  of  H.  29th  Cong.  1st  Sess.  802,  803; 

Same,  32d  Cong.  2d  Sess.  405. 


CnAP.    L]  SPEAKING   IN   DEBATE.  603 

other  member  desires  to  speak ;  but  in  all  these  cases,  the  floor 
must  be  claimed  when  the  irregularities  take  place ;  and  in  the 
last,  motions  are  often  made  and  leave  granted  to  the  members 
in  question  to  proceed  without  the  special  leave  of  the  house.' 

1545.  In  these  cases,  it  is  not  customary  for  any  ord^r  of  the 
honse  to  be  made,  or  any  question  to  be  proposed ;  the  fact  which 
entitles  the  member  to  indulgence  being  brought  to  the  knowledge 
of  the  house  by  some  member,  or  suggested  by  the  speaker,  the 
member  is  then  allowed  to  proceed. 

1546.  Anciently,  the  right  of  one  member  in  the  house  of  com- 
mons to  speak  in  preference  to  another  in  debate  on  a  bill,  might 
be  determined  by  the  rule  agreed  to  June  6,  1604,-  "that  if  tAvo 
stand  up  to  speak  to  a  bill,  he  against  the  bill,  (being  known  by 
di^mand  or  otherwise,)  to  be  first  heard  ; "  but  it  is  doubtful  whether 
this  rule  would  not  now  be  treated  as  obsolete.^ 

1547.  A  member  who  is  in  possession  of  the  floor  may  }deld  it 
to  another  on  request  for  a  temporary  purpose,  and  upon  a  com- 
pact that  it  shall  be  restored  to  him  whenever  that  purpose  shall  be 
accomplished.  K  the  floor  is  yielded  for  a  motion  to  postpone  or 
adjourn,"*  or  that  the  committee  rise,^  and  no  adjournment  or  post- 
ponement takes  place,  or  the  committee  refuses  to  rise,  the  floor  is 
to  be  restored  to  the  member  originally  in  possession  of  it,  whose 
right  thereto  will  be  recognized  and  enforced  by  the  speaker  or 
chairman.  The  same  is  true,  if  a  member  in  possession  of  the  floor 
yif'lds  it  for  the  purpose  of  explanation ;  but  if  relinquished  for  any 
other  purpose,  as,  for  the  making  or  withdrawal  of  a  motion  or 
amendment,  the  making  of  a  report,  or  the  reading  of  a  speech,  — 
such  yielding  is  held  to  be  unconditional,  the  compact  therefor  can- 
not be  recognized  or  enforced  by  the  speaker,  and  the  floor  is  free 
to  any  other  member.^ 

1548.  When  a  member  in  possession  of  the  house  has  concluded 
his  remarks  and  resumed  his  seat,  it  is  then  compel ent  for  any 
other  member  to  entitle  himself  to  address  the  house  by  rising  and 
presenting  himself  to  the  notice  of  the  speaker,  and  obtaining  pos- 
session of  the  house  in  the  manner  already  described.  At  the  con- 
clusion of  every  speech,  the  question  pending  is  open  to  debate  as 

1  Reg.   of  Deb.   Part  1,  1337;  Same,   III.      Same,  IX.  Part  1,  462 ;  Cong.  Globe,  111.264, 

S02.  Same,  VI.  487;  Same,  VIII.  131;  Same,   173, 

a  Comm.  Jour.  I.  232.  174,   290;    Same,    IX.    103;    Same,   XI.  687, 

3  May,  243.  Same,   XIII.    644;    Same,    XV.    78;    Same, 

*Keg.  of  Deb.  IV.  Part  3,  300.  XVI.   199;    Same,    XX.    239;    Same,    XXI. 

»  Cong.  Globe,  XXI.  964.  1437;  Same,  1459;   Same,  1535;  Same,  16S7; 
»  l\-g.    of  Deb.   III.   1045;  Same,   V.   371;      Same,  XV.  14. 


604  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI. 

before,  until  every  member  has  spoken  who  desires  to  speak ;  nor 
does  the  circumstance  that  a  member  has  previously  risen  to  ad- 
dress the  house  entitle  him  to  any  preference  over  others ;  but 
whenever  an  opportunity  occurs  for  addressing  the  house,  all  the 
member^  stand  upon  the  same  footing  of  perfect  equality  as  when 
the  debate  commenced. 


Section  II.    Personal  Deportment  of  Members  in  Speaking. 

1549.  The  rules  of  order,  applicable  to  debate,  relate  chiefly  to 
the  time  when  and  the  cu-cumstances  under  which  a  member  may 
speak,  or  to  what  may  or  may  not  be  said  by  a  member  in  address- 
ing the  house.  There  are  some  rules,  however,  relating  to  the  per- 
sonal deportment  of  a  member  while  speaking,  which,  though 
already  treated  of  in  another  place,  require  to  be  briefly  adverted 
to  in  this  connection. 

1550.  I.  In  both  houses,  it  is  a  general  rule,  that  a  member,  in 
addressing  the  house,  is  to  speak  from  his  place,  and  not  from  any 
of  the  passage  ways,  or  at  the  table.^  The  place  of  a  member  is 
that  part  of  the  house  where  he  has  his  seat,  and  in  which  he  gives 
his  vote ;  which,  in  the  commons,  is  the  seat  occupied  by  him  for 
the  time  being,  and,  in  the  lords,  the  bench  appropriated  to  the 
rank  of  nobility  to  which  he  belongs.  In  the  latter  house,  the 
rule  appears  never  to  have  been  strictly  enforced,  on  account  of  the 
greater  inconvenience  which  would  result  from  such  an  enforce- 
ment ;  the  members  being  allowed  to  speak  from  any  of  the  seats 
indiscriminately,  or  from  the  table,  if  they  have  papers  to  read.^  In 
the  commons,  the  rule  only  requires  that  a  member  should  speak 
from  some  seat,  in  the  house  or  the  gallery.^  In  the  legislative 
assemblies  of  this  country,  although  the  seats  of  members  therein 
are  usually  assigned  for  the  whole  session,  the  same  principles 
prevail.'^ 

1551.  11.  lo  both  houses,  it  is  a  rule,  that,  when  a  member 
addresses  the  house  in  debate,  he  is.  to  stand  up  in  his  place  and 
speak  uncovered.  The  first  part  of  this  rule,  which  is  founded  in 
the  respect  due  from  the  members  to  the  assembly,  admits  of  an 


»  Hatsell,n.  108;  Hans.  XV.  178;  Same,  (3),  Same,  32d  Cong.   2d  Sess.  405;  Reg.  of  Deb, 

XLI.  1294,  1295.  VIII.    Part  3,   3910;    Cong.   Globe,  VIIL  68 

2  Hans.  (3),  XLL  294,  295.  Same,  150;  Same,  XL  353;  Same,  XIIL  677 

>  Hatscll,  II.  108.  Same,  XI.  282. 
♦  J.  of  H.  29th  Cong.  Ist  Sess.  802,  803; 


ClIAP     ].]  SPEAKING    IN    DEBATE.  605 

exception  only  in  cases  of  sickness  or  infirmity;  when  the  influl- 
gence  of  a  seat  is  frequently  allowed,  at  the  suggestion  of  a  mem- 
ber, and  with  the  general  acquiescence  of  the  house.^  This 
indulgence  may  be  either  special,  for  some  particular  occasion,  or 
general,  whenever  the  member  desires  to  speak.  When  a  member, 
who  is  sick  or  infirm,  is  rising  to  speak,  and  another  wishes  to 
move  that  he  be  indulged  to  speak  sitting,  he  entitles  himself  to 
make  the  motion  for  that  purpose,  by  rising  to  order.^  In  the  com- 
mons, another  exception  to  the  rule  occurs,  when  a  question  arises 
whilst  the  house  is  dividing;  in  which  case,,  the  members  are 
allowed  by  the  speaker  to  speak  sitting,  and  covered,  in  order  to 
avoid  even  the  appearance  of  a  debate.^ 

1552.  III.  In  the  house  of  lords,  when  a  member  speaks,  he 
addresses  his  speech  "  to  the  rest  of  the  lords  in  general."  ■*  In  the 
commons,  a  member  when  speaking  addresses  the  speaker  alone, 
and  it  is  irregular  for  him  to  direct  his  speech  to  the  house  in  gen- 
eral, or  to  any  party  in  it,  or  to  any  individual  member.-^  The  dif- 
ference between  the  two  houses  in  this  respect,  may  perhaps  be 
attributable,  at  least  in  part,  to  the  fact,  that  the  presiding  officer 
of  the  lords  is  not  necessarily,  and  frequently  is  not  in  fact,  a  mem- 
ber of  the  body  over  which  he  presides.  In  this  country,  the  prac- 
tice of  the  house  of  commons,  in  this  respect,  is  generally,  if  not 
universally,  observed.  Members  in  speaking  address  themselves  to 
the  presiding  officer  alone  by  the  title  of  his  office,  as  Mr.  Speaker, 
or  Mr.  President. 

1553.  IV.  It  is  a  general  rule,  in  both  houses,  that  a  member, 
in  addressing  the  house,  is  to  do  it  orally  and  not  by  means  of  a 
written  discourse ;  for  the  reason,  as  stated  by  Mr.  Fox,  "  that,  if 
the  practice  of  reading  written  speeches  should  prevail,  members 
might  read  speeches  that  were  wTitten  by  other  people,  and  the 
time  of  the  house  be  taken  up  in  considering  the  arguments  of 
persons  who  were  not  deserving  of  their  attention."  ^ 

1  TlMtscU,  II.  107 ;  Romill y,  2G9,  270.    Wlien  United  States  on  the  9th  •f  April,  1818,  it  was 

Mr.    I'itt  made   his  famous    speech,  in  1793,  imanimounly  asreed  to  suspend  in  his  favor, 

against  the  peace,  he  was  permitted,   on  ac-  the  rule  providing  that  a  member,  when  he 

count  of  liis  infirmities,  to  sjieak  sittin<^.     See  speaks,  shall  address  the  chair  standing  in  his 

also  the  cases  of  Lord  Wynford,  Lord's  Jour,  place.    J.  of  H.  loth  Cong.  1st  Sess.  340. 

I XIV.  1G7,  and  of  Mr.  Wynn,  9th  March,  1843,  "-  Hans.  (3),  LXIII.  208,  209. 

Hans.  (3),  LXVII.  658.     On  a  former  occasion,  '  A  quaker  is  allowed  to  speak  covered. 

May  0,  1(^42,  Hans.  (3),  LXIII.  208,  209,  the  lat-  *  Lords'  S.  0.  No.  14. 

ter  gentleman  declined  the  indulgence.     When  *  Hatsell,  II.  107;    j\lay,  240. 

-Jie  Hon.  Samuel  W.  Dana,  senator  from  Con-  «  Hims.  (1),  VII.  188,  207,  208. 
necticut,  took  his  seat  in  the  senate  of  the 

51* 


606  LEGISLATIVE    ASSEMBLIES.  [PaET   VL 

1554.  But  though  this  has  always  been  the  rule,  it  appears,  in 
the  earlier  periods  ^  of  parliamentary  history  to  have  been  frequently 
dispensed  with,  as  a  matter  of  "common  courtesy ;"2  and,  in 
modern  times,  members  have  been  occasionally  indulged  with 
reading  their  speeches.^  On  the  occasion  of  the  charges  brought 
forward  in  the  house  of  commons,  against  the  earl  of  St.  Vincent, 
in  the  year  1806,  the  member  by  whom  they  were  introduced,  hav- 
ing thought  proper  to  read  nearly  the  whole  of  his  very  long  speech, 
on  concluding  it,  ]\Ir.  Speaker  Abbott  said,  "  that  the  house  had 
not  judged  it  necessary  to  interrupt  the  honorable  gentleman,  and 
therefore  he  had  not  interfered  lest  in  him  it  might  seem  ungracious; 
he  begged,  however,  to  inform  the  honorable  gentleman,  that  such 
an  indulgence  was  wholly  inconsistent  with  the  order  and  usage  of 
parliamentary  proceeding ;  and  he  hoped,  therefore,  that  the  chcum- 
stance  of  its  having  been  suffered  to  pass  now  would  not  be  pleaded 
as  a  precedent  to  justify  a  similar  occurrence  hereafter."  ^ 

1555.  The  rule,  however,  does  not  preclude  members  from  the 
use  of  written  notes,  for  the  purpose  of  enabling  them  to  state  the 
elements  or  results  of  numerical  calculations,  or  to  aid  their  memory 
in  calling  to  mind  the  facts,  or  in  arranging  the  matters,  which  they 
propose  to  introduce  in  their  speeches.^ 


CHAPTER    SECOND. 

OF    THE    RULE    THAT    NO    MEMBER    IS    TO    SPEAK,    UNLESS    TO    A 
QUESTION  ALREADY  FENDING  OR  TO  INTRODUCE  A  QUESTION. 

1556.  It  is  essential  to  the  efficient  proceeding  of  a  deliberative 
assembly,  that  its  discussions  should  be  conducted  in  such  a  man- 
ner, and  directed  to  such  questions,  that,  when  concluded,  the  judg- 
ment, opinion,  or  will   jf  the  assembly,  in,  reference  to  the  topics 

1  "  In  ancient  times,  but  a  few  persons  spoke  Sir  Wm.  Coventry,  March  2, 1676.    Grey,  IV 

in  the  house,  and  their  speeches  were  reudj  172. 
penned.     The  powder  and  shot  was  ready         ^  Grey,  I.  158,  159. 
made  up  into  cartridges;  ready  cut  and  dried,         »  Hans.  (1),  VII.  188,  207,  208. 
and  a  man  had  then  time  to  think;  but  now         *  Hans.  (1),  VII.  188,  207,  208. 
we  speak  on  a  sudden,  and  therefore  would         «*  Hans.  (1),  VII.  188,  207,  208.     See  rIs* 

have  some  grains  of  allowance  given."     By  Eeg.  of  Deb.  IX.  Part  2,  1492,  1521- 


Chap.  IL]  no  speaking  but  to  a  questiqn.  607 

discussed,  may  be  ascertained  with  certainty,  and  expressed  with 
authority.  Hence,  it  is  an  established  rule  of  parliamentary  prac- 
tice, and  one  that  should  always  be  strictly  observed,^  that  no 
member  is  to  address  the  house,  unless  it  be  to  speak  to  a  question 
already  pending,  or  to  introduce  a  (jucstion.- 

1557.  In  the  earlier  periods  of  j)arliamentary  history,  it  was  the 
practice  for  meml^crs  to  address  the  house,  in  reference  to  any  topic 
which  they  might  think  proper  to  introduce,  or  which  might  already 
have  been  introduced  by  other  members,  without  any  motion  ;  after 
some  time  spent  in  this  manner,  the  speaker  then  framed  a  question 
from  the  turn  of  the  debates,  or  from  the  suggestions  of  the  several 
members  who  spoke,  and  stated  it  to  the  house ;  and  a  question 
being  thus  regularly  proposed,  for  the  determination  of  the  house, 
the  members  who  afterwards  addressed  the  house  were  confined  to 
that  question.  This  form  of  proceeding  was  done  away  with  in 
the  time  of  JNIr.  Speaker  Onslow,  and  the  present  practice  estab- 
Ushed,  according  to  which  no  debate  is  allowed  but  upon  a  ques- 
tion proposed  or  to  be  proposed  for  the  determination  of  the  house. 
A  trace  of  the  ancient  practice,  however,  still  remains,  in  the  rule 
which  allows  the  member  who  makes  a  motion  to  introduce  it  by  a 
speech,  and  the  seconder  of  a  motion  to  accompany  it  by  a  speech, 
before  the  motion  is  proposed  as  a  question  from  the  chair.  But,  in 
order  to  entitle  the  mover  to  proceed  in  this  manner,  he  must  either 
announce  when  he  rises,  or  it  must  be  in  some  other  way  made 
known  to  the  house,  that  he  intends  to  conclude  with  a  motion.^ 

1558.  When  a  member  who  has  given  previous  notice  of  a  mo- 
tion rises  and  addresses  the  house,  it  is  sufficiently  understood,  or 
taken  for  granted,  that  he  intends  to  conclude  with  a  motion,  and 
he  is  usually  suffered  to  proceed  without  any  formal  announce- 
ment of  his  intention.  But  if  a  member  who  has  given  no  such 
previous  notice,  or  whose  intention  is  not  made  known  in  some 
other  way,  rises  to  address  the  house  when  there  is  no  question  be- 
fore it,  he  may  be  interrupted  by  the  speaker  or  any  other  member, 
on  the  ground  that  there  is  no  question  before  the  house.  If,  on 
being  so  interrupted,  the  member  states  that  he  intends  to  conclude 

>  Miiy,  244.  before  the  house  to  authorize  debate."    Reg 

«  "  The  bisliop  of  St.  Asaj)h  snid,  that  a  con-  of  Deb.  VII.  683.    See  also  Cong.  Globe,  IIL 

rersation   had   continuod   for  a  considerable  2G1. 

time,  without  any  motion,  and  a  conversation  *  "  The  speaker  then  interfered,  as  there 

in  that  house,  without  a  motion,  is  a  conver-  was  no  question  before  the  house."  Haua.  (1), 

sation    about  nothing."      Hans.  (1),  II.  854.  XII.  658. 

"The  speaker  said  there  must  be  a  motion 


608  .      LEGISLATIVE    ASSEMBLIES.  [PaRT    VI 

with  a  motion,  he  is  entitled  to  proceed ;  if  he  states  that  he  does 
not  so  mtend,  he  cannot  be  allowed  to  go  on. 

1559.  K  a  member,  addressing  the  house  when  there  is  no  ques- 
tion before  it,  and  being  allowed  to  proceed  without  interruption, 
in  the  confidence  on  the  part  of  the  speaker  and  the  members,  that 
he  will  conclude  with  a  motion,  resumes  his  seat  without  making 
one ;  or,  if  a  member  having  given  previous  notice  of  a  motion, 
and  being  allowed  to  address  the  house  on  the  strength  of  such 
notice,  concludes  his  speech  by  withdrawing  the  notice  instead  of 
making  the  motion  ;  or,  if  a  member  addressing  the  house,  and  on 
being  interrupted,  declaring  his  intention  to  conclude  Avith  a  motion, 
finishes  his  speech  without  making  one ;  or,  if  a  member  being 
allowed  to  address  the  house,  either  upon  the  implied  or  express 
understanding  that  he  will  conclude  with  a  motion,  makes  one 
which  is  trifling  and  unimportant  in  itself,  or  irrelevant  to  the 
speech  for  which  it  serves  as  the  pretext ;  in  all  these  cases,  if  the 
failure  of  the  member  to  redeem  his  pledge,  proceeds  from  inadver- 
tence merely,  or  from  a  want  of  famiharity  with  the  practice  of 
parliament,  the  irregularity,  though  liable  to  be  remarked  upon,  is 
usually  overlooked ;  but  if  it  proceeds  from  a  design  wUfully  to  in- 
fringe upon  the  rules  of  debate,  or  to  abuse  the  confidence  of  the 
house,  such  conduct  might  subject  the  offending  party  to  animad- 
version and  censure,  and  even  to  punishment. 

1560.  The  seconder  of  a  motion,  to  entitle  himself  to  proceed, 
has  only  to  announce  that  he  rises  for  that  purpose ;  though,  in 
practice,  this  is  hardly  necessary,  as,  if  a  member,  after  a  motion  is 
made,  rises  and  addi-esses  the  house  in  its  favor,  it  must,  of  course, 
be  seen  at  once,  or  taken  for  granted,  without  being  formally  an- 
nounced, that  he  intends  to  second  it. 

1561.  But  though  a  member  may  thus  introduce  his  motion,  or 
second  one  already  made,  by  a  speech,  before  the  motion  is  pro- 
posed to  the  house,  and  consequently  before  there  is  any  question 
pending;  it  is  nevertheless  competent  for  a  member  to  make  a  mo- 
tion, or  to  second  one,  and  to  suffer  it  to  be  regularly  proposed  as  a 
question  before  addressing  the  house  ;  and,  in  this  case,  the  mover 
and  seconder  appear  to  stand  upon  the  same  footing  with  regard  to 
speaking  as  the  other  members,  and  have  no  right  to  be  heard  first 
in  the  debate,^  unless  they  first  obtain  possession  of  the  house. 

1562.  The  effect  of  this  principle  may  be  abrogated  by  a  special 
rule  implying  that  a  motion  shall  not  be  debated  until  it  is  regularly 

1  Pari.  Reg.  XXII.  249,  250,  366. 


Chap.  II.]  no  speaking  but  to  a  question.  G09 

stated  from  the  chair.  Thus,  there  is  a  rule  in  the  house  of  repre- 
sentatives in  congress,  first  adopted  in  that  body  in  1789,  which 
provides  that  "  when  a  motion  is  made  and  seconded,  it  shall  be 
stated  by  the  speaker;  or  being  in  writing,  it  shaU  be  handed  to 
the  chair,  and  read  aloud  by  the  clerk  before  debated."  This  rule 
does  not  appear  to  have  received  an  authoritative  exposition  until 
the  29th  of  May,  1812.  On  that  occasion  Mr.  John  Randolph 
having  risen  and  stated  to  the  house  tiiat  he  meant  to  submit  a 
proposition  for  consideration,  proceeded  to  discuss  at  large  the  rela- 
tions between  this  country  and  Great  Britain,  and  between  this 
country  and  France ;  when  Mr.  John  C.  Calhoun,  afterwards  vice- 
president  of  the  United  States,  interrupted  him  on  a  question  of 
order,  and  submitted  to  the  chair  whether  Mr.  Randolph  was  at 
liberty  thus  to  proceed  without  stating  his  proposition  and  its  being 
seconded.  The  speaker,  Mr.  Henry  Clay,  thereupon  decided  "  that 
Mr.  Randolph  was  bound  to  state  his  proposition,  which  ought 
moreover  to  be  seconded,  announced  from  the  chair,  and  reduced  to 
writing  if  required,  before  he  proceeded  to  debate  it."  This  decis- 
ion being  appealed  from  by  Mr.  Randolph  was  affirmed  by  the 
house,  and  Mr.  Randolph,  before  proceeding,  submitted  his  propo- 
sition, which  was  seconded  and  announced  from  the  chair.^  Of 
course,  where  a  motion  is  not  allowed  to  be  debated  until  it  has 
been  seconded  and  proposed  from  the  chair,  the  seconder  must  take 
his  chance  for  addressing  the  house  with  the  other  members. 

1563.  When  a  motion  is  made  and  seconded,  whether  accom- 
panied by  speeches  on  the  part  of  the  mover  and  seconder  or  not,  it 
is  then,  in  the  regular  course  of  proceeding,  to  be  proposed  by  the 
speaker  to  the  house  as  a  question  for  their  determination.  K  a 
motion  is  not  seconded,  —  unless  it  be  one  whicli  does  not  require 
seconding,  —  it  falls  of  course,  and  is  no  further  proceeded  with  ; 
when  seconded,  or  if  it  does  not  require  seconding,  it  is  then  open 
to  objection  and  debate,  as  to  its  form,  or  its  subject-matter,  or  the 
time  of  its  introduction;  if  unobjectionable  in  these  respects,  —  or, 
being  objected  to,  if  sustained  by  the  house,  or  rendered  unobjec- 
tionable by  the  mover,  —  it  is  then  to  be  proposed  to  the  house ; 
and,  when  so  proposed,  and  not  before,  it  is  open  for  debate  as  a 
question  to  be  determined  by  the  vote  or  resolution  of  the  house. 

1564.  To  the  rule  under  consideration,  namely,  that  no  member 
is  to  speak,  unless  there  is  a  question  pending,  or  to  be  introduced 
by  the  member  himself,  there  are  certain  exceptions,  which  will 

>  J.  of  H.  Vm.  355,  366.     See  also  J.  of  H.  17th  Cong.  1st  S«ss.  297. 


610  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI 

now  be  explained.  The  excepted  cases,  which  are  not  so  much  of 
strict  right,  as  of  the  indulgence  and  courtesy  of  the  house,  consist, 
first,  of  cases  in  which  the  rules  are  expressly  suspended  in  favor  of 
a  particular  member ;  second,  of  questions  to  and  answers  by  min- 
isters or  persons  connected  with  the  administration  of  the  govern- 
ment; third,  of  questions  and  answers  of  particular  members  con- 
cerning business  which  1hey  have  in  charge ;  and  fourth,  of  ques- 
tions to  the  speaker  concerning  the  general  course  and  order  of  the 
business  of  the  house.  In  this  country,  persons  officially  connected 
wdth  the  administration  or  executive  part  of  government  being 
carefully  excluded  by  most  of  our  constitutions,  from  being  mem- 
bers of  the  legislative  bodies,  the  practice  of  obtaining  important 
information  concerning  pubUc  affairs  by  means  of  questions  put 
directly  to  ministers,  does  not,  of  course,  prevail  here. 

1565.  In  our  legislative  assemblies,  and  particularly  in  the  house 
of  representatives  of  the  United  States,  whenever  a  member  con- 
ceives his  character  or  conduct  likely  to  be  misunderstood  in  con- 
sequence of  publications  in  newspapers  or  otherwise,  and  thinks  it 
of  sufficient  importance  to  be  set  right  with  his  fellow-members,  he 
asks  permission  of  the  house  to  make  a  personal  explanation.  If 
there  is  no  objection,  the  member  proceeds  ;  if  any  objection  is 
made,  the  member  then  moves  that  the  rules  be  suspended  in  order 
to  enable  him  to  make  a  personal  explanation  concerning  a  partic- 
ular matter.  The  rides  being  suspended  accordingly,  the  member 
then  proceeds  with  his  explanation.  In  giving  it,  he  is  not  liable 
to  be  called  to  order  for  irrelevancy,  provided  he  adheres  to  the  sub- 
ject which  he  undertakes  to  explain.^  He  is  only  bound  to  ab- 
stain from  personality.^  Permission  on  the  part  of  one  member  to 
make  a  personal  explanation  sometimes  leads  to  a  similar  indul- 
gence on  the  part  of  another.^ 

1566.  I.  The  house  may  dispense  with  the  rule,  on  some 
special  occasion,  in  favor  of  a  particular  member,  and  allow  him  to 
speak,  when  there  is  no  question  pending  or  to  be  introduced. 
This  indulgence  may  take  place  either  tacitly,  by  simply  alloudng 
the  member  to  proceed  without  interruption,  or,  expressly,  by  a 
vote  beforehand  granting  him  leave  to  speak,  either  at  his  own 
request  or  that  of  the  speaker  or  some  other  member.  In  the  for- 
mer case,  the  member  speaking  is*  liable  to  be  interrupted  at  any 

1  J.  of  H.  27th  Cong.  1st  Sess.  680;  Same,         « J.  of  H.  30th  Cong.  1st  Sess.  345;  Cong. 
29th  Cong.  1st  Sess.  721;  Same,  30th  Cong.      Globe,  XV.  732. 

1st  Sess.  345;  Cong.  Globe,  XV".  732.  ^3.  of  H.  29th  Cong.  1st  Sess.  985,  986; 

Same,  721. 


Chap.  II.]  no  speakixg  but  to  a  question.  611 

time  by  any  other  member  ol)jecting  to  his  further  proceeding ;  in 
the  latter,  whether  the  leave  is  granted  by  a  formal  vote  upon  a 
motion  made  for  the  purpose,  or  by  the  tacit  acquiescence  of  the 
house,  on  the  suggestion  of  the  speaker,  or  some  other  member, 
the  member  speaking  is  entitled  to  proceed  without  interruption. 

1567.  The  indulgence  of  speaking  when  there  is  no  question 
before  the  house  is  usually  confined  to  cases,  in  which  the  member 
has  some  complaint  to  make,  or  some  explanation  to  give,  relating 
to  himself;  and,  on  these  occasions,  the  house  is  usually  indulgent, 
though  the  member  concerned  does  not  intend  to  bring  the  suhject 
before  the  house  in  any  other  manner.  When  a  member  is  allowed 
to  speak  for  any  of  these  purposes,  by  the  indulgence  of  the  house, 
he  ought  not  to  go  into  general  arguments  or  to  indulge  in  any 
remarks  which  may  lead  to  debate  or  provoke  reply,  but  to  confine 
himself  to  giving  the  explanation  which  he  has  undertaken  to 
give  of  his  conduct  or  words,  or  to  justifying  himself  against  the 
imputations  of  which  he  complains ;  and,  so  long  as  he  confines 
himself  within  these  limits,  he  is  entitled,  if  he  has  the  express 
leave  of  the  house  to  speak,  or  is  generally  allowed,  if  the  indul- 
gence is  merely  the  acquiescence  of  the  house,  to  proceed  without 
interruption. 

1568.  II.  A  second  class  of  exceptions  has  arisen  from  the  prac- 
tice which  has  long  prevailed,  and  is  now  established  in  both  houses, 
of  putting  questions  to  ministers  or  persons  in  office,  concerning 
any  measure  pending  in  parliament,  or  other  public  event,^  or  the 
intentions  or  policy  of  the  government,-  and  of  receiving  the  an- 
swers or  explanations  of  the  persons  so  interrogated.'"'  This  devia- 
tion from  the  strictness  of  the  general  rule  of  order  has  been  at  all 
times  allowed,  as  a  means  of  obtaining  for  the  house  material  infor- 
mation which  might  throw  hi;:ht  upon  the  business  before  it,  and 
serve  to  guide  its  judgment  in  its  future  proceedings. 

1569.  1.  The  purpose  of  inquiries  of  this  description  being  to 
obtain  information  for  the  use  of  the  house,  it  is  the  common  prac- 
tice for  members  to  inform  the  gentleman  of  whom  they  are  about 
to  ask  a  question,  what  is  the  subject  of  it,  in  order  thai  he  may  be 
prepared  to  give  the  required  information."* 

1570.  2.  Questions  of  the  kind  now  under  consideration  can 
only  be  \n\t  to  members,  who  are  either  ministers,  or  who  hold  some 
official  position  in  the  government,  and  not  to  members  who  are 

1  May,  245.  «  Mny,  245;  Pari.  Reg.  (2),  X.  49,  102,  108 

«  ILiiis.  (3),  I, XIII.  491.  *  Hans.  (3),  XXXVIII.  1108. 


612 


LEGISLATIVE   ASSEMBLIES. 


[Part  VL 


merely  invested  with  some  civil,  military,  or  naval  office,  uncon- 
nected with  administrative  functions ;  thus,  where  a  member  was 
requested  to  state  his  ojiinion,  as  a  naval  officer,  of  a  certain  experi- 
ment recently  tried,  the  speaker,  Mr.  Shaw  Le  Fevre,  interposed, 
and  reminded  the  member  by  whom  the  question  was  put,  that  the 
member  to  whom  it  was  directed,  "  not  holding  any  official  position 
in  the  government,  was  not  called  upon  to  answer  any  question  of 
the  nature  of  that  put  to  him,  unless  it  pleased  him  to  do  so."  '■ 

1571.  3.  The  questions,  which  may  be  put  to  ministers,  and  which, 
by  the  practice  of  the  house,  it  is  their  duty  to  answer,  ought  regu- 
larly to  be  such,  the  answers  to  which  will  afford  information  to  the 
house,  relating  to  some  pending  measure,  or  to  some  public  event 
connected  with  the  administration,  or  to  enable  the  house  to  form 
an  opinion  of  the  policy  of  the  government ;  '-^  but,  to  put  inquiries 
to  ministers,  for  the  mere  purpose  of  being  able  to  contradict  an 
idle  rumor ;  ^  or  as  to  the  mere  news  of  the  day,  equally  accessible 
to  everybody,  as,  for  example,  "whether  the  French  troops  had 
taken  military  possession  of  the  citadel  or  town  of  Mons  ;  "  ^  or  as 
to  the  supposed  official  character  of  an  article  in  a  newspaper  ;  ■'  or 
as  to  the  truth  of  a  rumor  appearing  in  a  newspaper,  of  a  minis- 
terial measure  in  contemplation,  as,  for  example,  "  that  the  title  of 
king  consort  was  about  to  be  conferred  on  Prince  Albert;'"^  is 
wholly  irregular ;  and,  in  all  such  cases,  ministers  are  at  fiberty  to 
answer  or  not,  as  they,  in  their  discretion,  may  think  most  expe- 
dient and  proper. 

1572.  4.  According  to  the  strict  rule  of  order,  no  individual 
member  of  the  house  has  a  right  to  put  a  question  to  any  other 
member ;  he  may  move  the  house,  that  such  a  question  be  put  by 
the  speaker ;  and,  if  the  house  gives  its  permission,  the  question 
may  be  put  accordingly.  But,  in  practice,  it  is  found  most  conven- 
ient to  dispense  with  this  formality ;  and  questions  are  ordinarily 
put  by  one  member  directly  to  another  ;  being  supposed,  however, 
to  be  put  by  the  house  through  the  chair,  at  the  suggestion,  or  on 
the  motion,  of  such  member." 

1573.  In  putting  his  question,  it  is  the  duty  of  a  member  to 
express  himself-  in  a  respectful  manner,'^  and  to  confine  himself  to 
stating  it  as  a  dry,  simple  query ,^  with  merely  such  an  explanation 


1  Hans.  (3),  LXXVL  1177. 

2  Hans.  (3),  v.  1212,  1213. 

8  Hans.  (3),  LXXVH.  529,  530. 

*  Hans.  (3),  V.  1212,  1213. 

»  Hans.  (1),  XL.  591,  592,  593. 


«  Hans.  (3),  LXXVH.  52%  530. 
'  Hans.  (1),  XXXV.  155,  156,  157. 
8  Hans.  (1),  XV.  602,  603. 
»  Hans.  (3),  IL  554. 


Chap.  II.] 


NO   SPEAKING   BUT   TO   A   QUESTION. 


613 


of  the  facts  and  circumstances,  out  of  which  it  arises,  as  may  be 
necessary  to  render  it  intelli<,^il)le  to  the  house  ;  ^  but,  he  is  not  at 
liberty  to  comment  on  the  subject  of  it;^  nor,  in  stating  the  facets 
and  circumstances,  by  way  of  explanation,  to  go  into  them  at 
lengih  ;•'  or  to  present  them  in  such  a  manner,  as  to  raise  an  argu- 
ment and  lead  to  debate.* 

1574.  When  the  answer  to  a  question  has  been  given,  it  is 
irregular  for  the  member  asking  the  question,  or  for  any  otlier,  1o 
comment  upon  the  answer,  or  upon  the  subject  thereby  introduced 
to  the  house;  the  necessary  consequence  of  which  would  be  to 
engage  the  house  in  a  debate,  when  there  was  no  question  before 
it/'  If  it  is  desired  to  carry  the  subject  further,  the  practice  is,  to 
give  notice  of  a  motion  relating  to  it,  for  a  future  day,  or,  to  make 
such  a  motion  immediately." 

1575.  5.  When  a  question,  which  is  unobjectionable,  has  been 
put  to  a  minister  or  other  official  person,  in  a  proper  form  and  man- 
ner, the  member  so  interrogated  is  bound  to  answer  it,  provided  the 
information  demanded  is  within  his  knowledge,  and  can  be  com- 
municated consistently  with  the  public  interest.  In  giving  his 
answer,  the  member  should  confine  himself  to  the  points  stated  in 
the  question,  with  such  an  explanation  only,  as  will  render  the 
answer  intelligible,''  and  avoiding  all  comment  or  explanation  which 
may  lead  to  debate  or  provoke  reply.  The  answer,  when  given,  is 
inserted  on  the  journal,  as  a  matter  of  course,  and  without  any 
motion  or  vote.'' 

1576.  III.  A  third  class  of  exceptions  consists  of  questions  put 
to  particular  members,  and  of  the  answers  given  thereto,  relating  to 
measures,  of  which,  according  to  the  course  of  parliamentary  pro- 
ceedings, they  are  considered  to  have  especial  charge,  as,  for  exam- 
ple, members  who  have  introduced  bills,  or  who  have  given  notices 
of  morion.-'     Questions  of  this  description  are  supposed  to  be  put 

■  in  the  same  manner  as  questions  to  ministers ;  are  founded  in  a 
similar  reason  of  public  convenience ;  and  are  governed  by  the  same 
rules,  as  to  the  form  in  which  they  are  to  be  put,  and  the  manner 
in  which  they  may  be  answered.     There  is  no  similar  obligation, 


»  Hans.  (.3),  LXIX.  574. 
a  Huns.  (1),  IX.  191,  193. 
'  Hans.  (3),  U.  554. 

*  Hans.  (3),  VH.  263,  264. 
6  Huns.  (U,  XXXIX.  69. 

•  Hans.  (1),  XVI.  739 


7  May,  245. 

8  Hans.  (1),  XV.  602,  603. 

0  May,  245;  Hans.  (3),  XXVIII.  31.  Soe 
also  Conj^.  Globe,  VHI.  172;  Same,  X.  248; 
Same,  XI.  566 ;  Same,  XXIII.  215. 


52 


G14  LEGISLATIVE    ASSEMBLIES.  [PaET    VI. 

however,  on  the  part  of  the  member  intenogated,  to  answer ;  ^  nor 
is  the  answer,  when  given,  to  be  entered  on  the  journal. 

1577.  Questions  to  members  should  relate  only  to  the  course  of 
proceeding,  which  they  have  adopted,  or  propose  to  adopt,  in  refer- 
ence to  the  measm*es  which  they  have  in  charge ;  and  the  answers 
should  in  hke  manner  be  confined  to  the  course  of  proceeding,  with- 
out being  allo\^■ed  to  diverge  into  the  general  subject;  thus,  where 
a  member,  who  had  given  notice  of  a  motion  for  a  future  day,  was 
inquired  of  by  another  member,  whether  it  would  not  be  better  to 
postpone  his  motion,  and,  in  his  answer,  was  proceeding  at  some 
length  on  the  subject  itself,  he  was  interrupted  to  order,  and  the 
speaker  (IVIr.' Manners  Sntton)  said, that  the  member,  "having  been 
asked  to  postpone  the  motion,  he  certainly  was  at  liberty  to  state 
whether  he  would  acquiesce  in  or  refuse  that  request,  and  his 
reasons  for  so  doing ;  but,  in  going  beyond  that,  and  in  entering 
on  an  argument  in  reference  to  the  general  subject,  he  certainly 
rendered  himself  liable  to  the  comment  of  the  honorable  mem- 
ber." ^ 

1578.  The  subjects  above  suggested  are  the  only  ones  in  refer- 
ence to  which  questions  are  allowed  to  be  put  by  one  member  to 
another  and  answered.  Attempts  have  been  made,  from  time  to 
time,  to  interrogate  members  wdth  reference  to  other  matters,  but 
without  success.  Thus,  where  a  member,  having  first  read  from  a 
newspaper,  the  proceedings  of  a  certain  society,  at  a  public  dinner, 
at  which  certain  members  were  present,  then  proceeded  to  inquire, 
whether  those  members  avowed  one  of  the  resolutions,  passed  at 
the  meeting,  he  was  interrupted  to  order,  and,  the  speaker  said,  that 
"  it  was  certainly  quite  new  in  the  proceedings  of  parhament,  for 
members  to  be  questioned  in  that  house,  about  what  passed  at 
tavern  dinners."  ^  So,  where  a  member,  having  first  called  the 
attention  of  another  member  to  certain  observations,  which  the 
latter  had  made  respecting  him  in  the  course  of  a  previous  debate, 
then  called  upon  that  member  either  to  retract  the  charge,  or  to 
state  the  grounds  on  which  he  had  made  it,  and  the  member  so 
interrogated  was  proceeding  to  reply,  the  speaker  (Mr.  Manners 
Sutton)  interfered,  and  "  expressed  his  doubts,  whether,  according 
to  the  orders  or  forms  of  the  house,  such  a  question  should  be  put 
or  answered."^     In  another  case,  where  a  member,  alluding  to  a 


1  Hans.  (3),  LXXVI.  1177.  »  Huns.  (1),  XX.  74G. 

*  Hans.  (3),  XIIL  305.  *  Hans.  (2),  XIL  1314, 1315. 


Chap.  II.]  no  speaking  but  to  a  question.  61o 

statement  made  on  a  former  occasion,  by  another  member,  in  refer- 
ence to  a  petition  presented  by  the  former,  "that  it  had  been  drawn 
up  by  a  cowardly  and  malignant  demagogue,"  proceeded  to  ask 
that  memljer,  whether  he  had  ascertained  the  real  authors  of  that 
petition,  and,  if  he  had,  whether  he  intended  those  terms  to  ap[)ly  to 
those  individuals,  —  the  speaker  said,  that  "  he  thought  the  question 
which  was  put  by  the  honorable  member  most  irregular."  ^  It  is 
equally  irregular,  for  a  member  to  take  up  a  newspaper,  and  to  call 
upon  another  member,  whose  speech  is  there  reported,  either  to  deny 
or  adopt  tiiat  publication.^ 

1579.  IV.  Questions  relating  to  the  business  and  proceedings  of 
the  house,  addressed  by  members  to  the  speaker,  constitute  the  last 
class  of  exceptions  to  the  rule  now  under  consideration.  Questions 
of  this  nature,  to  be  admissible  consistently  with  order,  should  relate 
to  matters  in  reference  to  which  it  is  the  duty  of  the  speaker  to 
inform  the  house.^  Thus,  the  speaker  may  be  inquired  of,  as  to  the 
proper  mode  of  carrying  up  an  address;^  as  to  whether  an  instruc- 
tion to  a  committee,  which  a  member  had  given  notice  of  his  inten- 
tion to  move,  could  be  moved  consistently  with  the  forms  of  the 
house ;  ■'  as  to  the  course  of  proceeding,  which  a  member  proposes 
to  pursue  in  a  particular  case,  and  whether  it  would  or  would  not 
be  regular ;  ^  as  to  the  extent  and  meaning  of  a  rule  of  order  laid 
down  by  the  speaker  on  a  former  occasion ; "  as  to  whether  a  system 
of  proceeding,  in  common  use,  was  sti'ictly  in  order.^ 

1580.  In  all  cases  of  this  kind,  it  is  competent  for  other  members 
also  to  express  their  opinions.  If  this  should  lead  to  debate,  upon 
a  mere  hypothetical  point  of  order,  the  speaker  would  feel  it  to  be 
his  duty  to  jnit  a  stop  to  it,  on  the  ground  of  there  being  no  question 
before  the  house,  when  the  conversation  had  gone  as  far  as  was 
necessary  for  the  purpose  of  explanation.^ 

1581.  It  seems  to  be  the  duty  of  the  speaker,  to  take  it  for 
j(i-anted,  that  whoever  addresses  the  house  will  do  it  in  order ;  and 
he  may  well  presume  therefore  that  a  member  speaking,  when  there 
is  no  question  before  the  house,  will  conclude  with  a  motion,^*^  or 
otherwise  bring  himself  within  order. 

1  H:uis.  (3),  XIII.  424.  ^  Hans.  (3),  LXXIV.  107. 

■■!  Han,*.  (3),  XXXVII.  1318.    See  also  Cong.  «  Hans.  (3),  LXI.  661,  662. 

:iobe,  IV.  169.  '  Hans.  (3),  LXI.  GGl,  662. 

»  Iluns.  (1),  XXIII.  283;  Same,  (3),  LXXIV.  «  Hans.  (3),  LXIII.  491. 

216;  Pari.  Reg.  XXVI.  26.    See  also  Cong.  »  Hans.  (3),  LXXIV.  107. 

Globe,  XXI.  68.  »»  Pai-1.  Eeg.  LXII.  200. 

«  Haus.  U)i  XXIIL  283. 


d16  legislative  assemblies.  [Part  VI. 


CHAPTER     THIRD. 

OF  THE  RULE  THAT  NO  MEMBER  IS  TO  SPEAK  MORE  THAN  ONCE 

TO  THE  SAME  QUESTION. 

1582.  It  is  considered  essential  to  the  despatch  of  business  in  a 
legislative  assembly,  and  is  accordingly  established  as  a  rule,  that 
no  member  shall  speak  more  than  once  to  the  same  question.^ 
This  rule  seems  to  be  founded  in  the  principle,  that  when  each  of 
the  members  has  given  his  opinion,  the  question  is  in  fact  decided ; 
and  it  is  contrary  to  order  to  discuss  a  question  which  is  abeady 
decided.  To  this  rule,  there  are  certain  exceptions,  some  of  Avhich 
are  of  right,  and  others  of  the  indulgence  of  the  house.  Before 
taking  notice  of  the  exceptions,  it  will  be  necessary  to  explain  the 
txile,Jirst,  by  considering  what  is  understood  by  a  speaking,  and, 
secondly,  what  is  understood  by  the  same  question. 


Section  I.     What  is  understood  by  a  Speaking. 

1583.  A  question  being  proposed  from  the  chair,  or  otherwise 
arising  in  some  less  formal  manner,  every  member  is  at  liberty  to 
express  his  opinion  upon  it  by  rising  and  addressing  the  house. 
When  a  member  rises  for  that  purpose,  and  obtains  possession  of 
the  house,  he  may  address  it  at  any  length  and  in  whatever  manner 
he  pleases,  provided  he  confines  himself  within  the  rules  of  order ; 
and,  consequently,  whatever  he  says  with  reference  to  the  question, 
—  whether  consisting  of  his  own  thoughts,  or  of  something  extra- 
neous which  he  introduces  as  a  part  of  his  speech, — whether  within 
the  rules  of  order  or  not,  —  or  whether  much  or  little,  —  relevant  or 
otherwise,  —  constitutes  a  speaking.  If,  having  so  risen,  and  being 
so  entitled  to  speak,  he  says  but  little,  or  is  irregular  and  disorderly 
in  what  he  says,  and  then  resumes  or  is  compelled  to  take  his  seat, 
it  is  fair  to  presume,  either  that  he  has  nothing  more  to  say,  or 
nothing  that  is  proper  for  the  house  to  hear ;  and  he  is  accordingly 

1  Hatsell,  II.  105,  106.    It  is  common  in  the  and  to  provide,  also,  that  certain   questions 

legislative  assembhes  of  this  country  to  regii-  sliall  be  taken  without  debate.     Where  there 

late  by  a  special  rule  the  times  of  speaking,  is  no  special  rule  on  the  subject,  the   parlia- 

both  in  general,  and  as  to  particular  questions,  mentary  rule  above  stated  prevails. 


Chap.  III.]  no  member  to  speak  but  once.  617 

deemed  to  have  availed  liimsclf  of  his  right  to  address  the  house  on 
the  qneslion  before  it. 

1584.  The  following  are  examples  of  the  application  of  the 
rule,  and  will  serve  to  illustrate  what  is  meant  by  a  speaking :  — 
Where  a  member,  in  asking  a  question,  (which  he  had  a  right  or 
was  allowed  by  the  house  to  ask,)  followed  up  his  question  with  an 
observalion,  he  was  precluded  from  speaking  again,  on  the  ground 
that  he  had  already  spoken ;  ^  where  a  member,  who  had  spoken  to 
the  question,  rose  a  second  time,  and  was  proceeding  to  read  a  pas- 
sage from  a  petition  which  was  the  sul)ject  of  discussion,  he  was 
stopped  by  the  speaker  (Mr.  Manners  Sutton),  who  informed  him  that 
it  was  not  competent  for  him  to  do  so,  he  having  already  addressed 
the  house,  and  the  passage  was  thereupon  read  by  another  member, 
who  had  not  before  spoken ;  ^  where  a  member,  addressing  the  house 
and  being  interrupted  by  a  violent  coughing  and  cries  of  question, 
abruptly  terminated  his  speech  with  a  motion  to  adjourn,  which  he. 
afterwards  proposed  to  vv^ithdraw,  the  speaker  (Mr.  Manners  Sut- 
ton) informed  him,  that  he  might  do  so,  with  the  permission  of  the 
house,  but  he  could  not  again  speak.^ 

1585.  It  seems  that,  according  to  the  strict  rule,  where  a  mem- 
ber rises  and  makes  or  seconds  a  motion,  without  addressing  the 
house  at  the  same  time,  such  moving  or  seconding  is  equivalent  to 
a  speaking,  and  precludes  the  member  from  afterwards  speaking  in 
the  debate.  The  rule  was  thus  stated  in  express  terms  by  Mr. 
Speaker  Manners  Sutton,  with  reference  to  a  member's  seconding 
a  motion,'*  and  it  is  difficult  to  distinguish,  in  this  respect,  between 
the  mover  and  the  seconder  of  a  motion ;  but  the  speaker  added, 
that  though  the  strict  rule  was  unquestionably  so  "  it  was  some- 
times the  custom  of  the  house  to  allow,  as  a  matter  of  courtesy, 
a  gentleman  who  had  seconded  a  motion  to  speak  at  a  future 
period."^  Such  seems  now  to  be  the  general  practice  both  in  rela- 
tion to  the  mover  and  seconder  of  a  motion.'^  In  this  country,  it  is 
held,  that  a  member,  who  has  spoken  in  the  debate,  and  is  not  at 
liberty  to  speak  again,  may,  nevertheless,  rise  for  the  purpose,  and 
make  any  motion  in  relation  to  the  matter  in  question,  which  is  in 
order  at  the  time.''^ 

1  Hans.  (3),  XXXV.  641,  642.  of  the  duke  of  York,  without  t^peakinj?;  then 

2  Hans.  (2),  XVI.  121T.  three  other  members  spoke;  then  Sir  Francis 

*  Huns.  (3),  n.  538.  Burdett  spoke  without  objection.     Huns.  (1), 

*  Huns.  (2),  IV.  1013.  XII.  187,  192. 
'  Sir  Friincis  Burdett,  seconded  Mr.  W;ir-         "  M:iy,  247. 

lie's  motion  for  an  inquiry  into  tlie  conduct         "  J.  of  H.  24th  Cong.  1st  Sess.  83. 

52* 


G18  LEGISLATIVE   ASSEMBLIES.  PaRT   VI. 


Section  II.    What  is  understood  by  the  same  Question. 

1586.  A  motion,  made,  seconded,  and  proposed  from  the  chair, 
becomes  a  question  for  the  decision  of  the  house ;  a  question  may 
also  arise  in  a  less  formal  manner,  as,  for  example,  when  a  point  of 
order  occurs,  without  any  motion  being  made,  or  question  proposed ; 
but,  in  whatever  manner  a  question  may  arise,  when  it  is  regularly 
before  the  house,  every  member  has  a  right  to  express  his  opinion 
upon  it,  until  it  is  disposed  of,  either  permanently  or  for  the  time 
bemg. 

1587.  It  frequently  happens,  while  a  question  is  pending  and 
under  discussion,  that  some  other  question,  —  subsidiary,  incidental, 
or  privileged,  —  arises  or  is  formally  moved ;  in  which  case,  the 
question,  fh'st  moved,  called  sometimes  the  main,  that  is,  primary, 
or  principal  question,  is  superseded  or  suspended  for  the  time  being, 
by  the  new  question.  "When  this  proceeding  takes  place, —  as  soon 
as  the  new  question  arises  or  is  formally  proposed,  —  that  is  the 
question  to  which  members  must  speak  and  every  member  is  at 
liberty  to  speak  to  it,  notwithstanding  he  may  have  spoken  to  the 
former. 

1588.  If  the  new  question  is  of  such  a  nature,  that  the  decision 
of  it  either  way  does  not  involve  a  decision  of  the  main  question ; 
—  when  the  former  is  decided,  1  he  latter  revives  and  the  debate 
upon  it  proceeds  in  the  same  manner  as  if  it  had  never  been  inter- 
rupted: those  who  spoke  to  it  before  the  intervention  of  the  new 
queslion,  are  not  at  Uberty  to  speak  again;  and  those  who  have 
only  spoken  to  the  new  question  are  then  at  liberty  to  speak  to  the 
main  question,  in  the  same  manner  as  if  the  former  had  never  been 
moved.  An  example  of  this  occurs,  where  an  amendment  is  moved; 
which,  of  course,  supersedes  the  original  question,  until  it  is  decided. 
While  the  amendment  is  pending,  the  main  question  cannot  be 
spoken  to;  when  it  is  decided,  —  whether  agreed  to  or  rejected, — 
the  original  question  revives  and  may  be  spoken  to  as  before. 

1589.  If  the  new  question  is  one,  which,  if  decided  one  way, 
carries  with  it  a  decision  of  the  principal  question,  but,  if  decided 
the  other  way,  allows  the  main  queslion  to  revive ;  as  soon  as  the 
new  question  is  moved,  it  may  be  spoken  to  as  well  by  those  who 
have  aheady  spoken  on  the  main  question  as  by  those  who  have 
not;  but,  when  decided,  if  the  decision  does  not  also  involve  thg-t 
of  ths  main  question,  ihe  latter  may  then  be  spoken  to,  by  all  who 


Chap.  III.]  no  member  to  speak  but  once.  619 

have  previously  spoken  only  on  the  secondary  question.  An  exam- 
ple of  this  occurs,  when  during  the  pendency  of  any  question,  an 
adjournment  of  the  debate  is  moved.  Whilst  this  latter  motion  is 
pending,  every  member  may  speak  to  it,  though  he  may  have 
already  spoken  to  the  original  question.  If  decided  in  the  affirma- 
tive, the  original  question  is  disposed  of,  by  being  postponed,  untU 
the  day  to  which  it  is  adjourned;  if  in  the  negative,  the  original 
question  revives,  and  may  be  spoken  to  as  already  stated.  The 
previous  question  is  an  exception  to  this  rule ;  because,  if  decided 
in  the  negative,  the  main  question  is  suppressed,  and  if  decided  in 
the  affirmative,  it  must  be  immediately  taken,  without  any  further 
de])ate  being  allowed. 

1590.  Where  the  debate  on  a  question  is  adjourned  to  a  futture 
day,  and  then  resumed,  the  resumed  debate  is  considered  merely  as 
a  continuation  of  the  original  debate;  those  who  have  previously 
spoken  on  the  question,  though  on  a  former  day,  not  being  at  liberty 
to  speak  again ;  while  those  who  have  not  previously  spoken  may 
speak,  however  many  times  the  debate  may  have  been  adjourned 
and  resumed.^  It  is  immaterial  in  what  manner  the  continuation 
of  the  debate  takes  place,  as  by  lapse  of  time,  adjournment  of  the 
house,  postponement  of  the  subject,  as  well  as  by  adjournment  of 
the  debate. 

1591.  The  word  question,  in  the  rule,  that  no  member,  shall  speak 
more  than  once  to  the  same  question,  is  to  be  taken  in  its  strict 
technical  sense  of  a  question  submitted  to  the  decision  of  the  house, 
and  not  as  synonymous  with  the  subject  of  that  question  ;  for,  when 
a  question  is  submitted  to  the  house,  every  member  has  a  right  to 
speak  to  that  question,  notwithstanding  he  may  have  aheady 
spoken  on  the  subject  of  it,  on  some  former  occasion,  and  notwith- 
standing the  house  may  have  already  expressed  an  opinion  on  the 
same  subject.  Hence,  it  is  a  principle  of  parliamentary  practice, 
that,  when,  by  the  forms  of  proceeding,  the  same  subject  is  sub- 
mitted to  the  consideration  of  the  house  more  than  once,  the  ques- 
tion presented  on  each  occasion  is  a  new  and  different  one,  and 
open  to  debate,  precisely  in  the  same  manner  as  if  the  subject  of  it 
had  never  been  discussed  in  any  other  form.  Thus,  each  stage  of 
a  bill  gives  occasion  to  a  new  and  different  question,  though  the 
subject  remains  the  same ;  as,  for  example,  a  motion  for  leave  to 
bring  in  a  bill  presents  a  different  question  from  a  moUon  that  the 
bill  be  read  a  furst  or  second  time ;  and  a  motion  for  commitment 

1  Purl.  Re-.  XLIV.  487;  J.  of  H.  24th  Cong.  1st  Sess.  S3. 


620  LEGISLATIVE   ASSEMBLIES.  [PaKT    VI. 

of  a  bill  gives  rise  to  a  different  question  from  a  motion  that  the 
bill  pass.  So,  where  resolutions  for  an  address  are  discussed  and 
agreed  to,  and  a  committee  appointed  to  draw  it  up,  when  the 
address  is  reported,  and  a  motion  made  for  agreeing  to  it,  the  ques- 
tion presented  is  a  different  one  from  agi-eeing  to  the  resolutions, 
although  the  subject  is  the  same,  and  the  language,  mutatis  mutandis, 
the  same. 

1592.  A  member,  who  has  already  spoken  to  the  question,  has 
the  same  right  to  make  a  new  motion,  as  if  he  had  not  spoken,^ 
and  to  introduce  his  motion  by  a  speech,  without  being  taken  down 
to  order  on  the  ground  of  his  having  before  spoken.^  But,  in  this 
case,  it  is  irregular  and  disorderly  for  a  member  to  use  his  right  as 
a  mere  pretence  for  making  a  second  speech  to  the  same  question ; 
as,  where  a  member,  having  aheady  spoken,  and  being  allowed  to 
proceed  in  a  second  speech,  on  his  saying  that  he  should  conclude 
with  a  motion,  concluded  with  moving  that  certain  parts  of  the 
journal  be  read,  the  speaker  (Sir  John  Mitford)  said,  that  "  it  was 
not  usual  to  put  the  question,  nor  to  make  motions  for  reading 
extracts  from  the  journals,  unless  something  was  to  be  done  upon 
it ;  he  feared,  therefore,  that  he  had  not  been  regular  in  allowing  the 
honorable  gentleman  to  make  a  second  speech."  ^ 

1593.  The  foregoing  rule  is  subject  to  an  exception  in  regard  to 
motions  for  amendment ;  which,  if  moved  by  a  member,  who  has 
already  spoken,  cannot  be  introduced  by  a  speech.*  The  propriety 
of  this  exception  being  called  in  question  by  Mr.  Pitt,  and  the 
opinion  of  the  speaker,  Su:  John  Mitford,  called  for,  he  said,  that  "  it 
certainly  was  not  strictly  customary  to  allow  a  gentleman  to  go 
over  the  whole  ground  of  his  former  speech,  because  he  meant  to 
conclude  with  an  amendment,  —  that  much  trouble  would  be  saved 
to  the  house  by  preventing  persons  who  had  once  spoken  in  debate,^ 
and  explained,  proposing  amendments  to  motions,  that  no  possible 
inconvenience  would  arise,  as  this  did  not  preclude  any  other  gen- 
tleman from  proposing  the  intended  amendment,  —  and  that,  in 
his  mind,  this  would  be  the  most  regular  and  orderly  method."  ^ 
This  opinion  was  acquiesced  in  by  the  house.  At  a  subsequent 
period,  Mr.  Speaker  Abbott  gave  it  as  his  opinion,  in  general  terms. 


1  J.  of  H.  24th  Cong.  1st  Sess.  83.  *  Mr.  Pitt's  question  referred  to  tlie  case  of 

2  Hans.  (1),  I.  819.  a  member,  who  had  spolicn  and  explained,  and 
"  Pari.  Reg.  LX.  365,  366.     See  further,  on  the  same  qualification  is  here  inserted  by  th« 

this  subject,  Same,  LIX.  337.  speaker.    It  is  clearly  immaterial. 

*  Pari.  Keg.  LX.  86,  87;  Hans.  (1),  IV.  546,  «  Pari.  Reg.  LX.  86,  87. 
B47. 


Chap.  III.]  no  member  to  speak  but  once.  621 

that  by  the  rules  of  the  house,  a  member  could  not  make  a  second 
speecli  to  move  an  amendment.^ 

159  L  The  rule,  which  precludes  a  member  from  speaking  more 
than  once  to  the  same  question,  is  subject  to  certain  exceptions, 
which  are  of  right,  namely:  1,  to  explain;  2,  to  make  a  statement 
of  fact ;  and,  3,  when  the  house  is  in  committee  of  the  whole  ;  and, 
also,  to  certain  others,  which  are  due  to  the  indulgence  of  the 
house,  namely :  4,  in  certain  cases  to  reply  at  the  end  of  a  debate ; 
and,  5,  when  the  rule  is  dispensed  with  on  some  particular  occa- 
sion. 

1595.  I.  When  a  member,  who  has  already  spoken,  conceives 
himself  to  have  been  misunderstood  in  some  material  point  of  his 
speech,  as,  for  example,  when  his  language  is  misquoted,-  he  is 
allowed  to  speak  again,  for  the  purpose  of  explaining  himself,  in 
reference  to  the  part  so  misunderstood.^  In  the  lords,  it  is  an 
ancient  order,  "  that  none  may  speak  again  to  explain  himself,  unless 
his  former  speech  be  mistaken,  and  he  hath  leave  given  to  explain 
himself ; "  ^  in  the  commons,  the  privilege  of  explanation  is  allowed, 
without  actual  leave  from  the  house.'' 

1596.  The  right  of  explanation  is,  for  obvious  reasons,  limited  to 
a  statement  of  the  words  actually  used,  when  a  member's  language 
is  misquoted  or  misconceived,  or  to  a  statement  of  the  meaning 
of  his  words,  when  his  meaning  is  misunderstood.  It  is  not  in 
order,  therefore,  for  a  member,  under  pretence  of  explanation,  to 
state  what  he  was  going  to  say  but  did  not ;  *^  or  to  give  the  motives 
which  operated  in  his  mind  to  induce  him  to  form  the  opinion 
which  he  expressed ; '  or  to  explain  the  language  of  another  mem- 
ber ;  ^  or  to  explain  his  own  conduct ;  ^  or  to  explain  the  character 
and  conduct  of  another  person ;  ^^  or  to  go  into  new  reasoning  or 
argument ;  ^^  or  to  reply  to  the  speech  of  another  member.^- 

1597.  The  proper  time  for  explanation  is  when  the  member 


1  Hans.    (1),   IV.   546,   547.       Perhaps  the         «  Cav.  Deb.  I.  465. 
exception  would  be  confined  to  the  cixse  of  a         «  Hatsell,  II.  105 ;  Hans.  (3),  XII.  923. 
member's    undertaking    to    make    a    second         *  May,  246. 
speech  on  the  same  question,  under  the  pre-         ^  ^I<iy,  247. 
tence  of  moving  an  amendment;  and  that  a         '  Hans.  (1),  I.  814,  615. 
member,  who  had  already  spoken,  might  be         '  Hans.  (1),  XXIX.  409. 
allowed  to  introduce    an    amendment  by  a         »  Hans.  (1),  XXVI.  515;   Same,  (1),  XLL 

speech,  provided  he  kept  strictly  to  the  amend-  167. 

ment,  without  entering  again  upon  the  main         •  Hans.  (3),  LXVI.  885. 

question.      Perhaps,   however,   the    meaning  i"  Hans.  (3),  XXXVIII.  13. 

may  possibly  be,  that  a  member  who  has  "  Pari.  Keg.  XXV.  22;  Hans.  (1),I.  814, 81i 

spoken  to  a  question  is  not  allowed  to  move  "  Hans.  (1),  LXVI.  885. 
ui  amendment. 


622  LEGISLATIVE   ASSEMBLIES.  [PaRT  VL 

spealdng  has  concluded  his  remarks ;  until  which  time,  the  member 
misrepresented  or  misunderstood  has  no  right  to  explain.^  It  is, 
however,  the  constant  course,  in  order  to  prevent  the  founding  of 
an  argument  upon  a  misrepresentation,  which  is  perhaps  involun- 
tary, to  allow  a  slight  interruption  of  the  member  speaking,  for  the 
purpose  of  correcting  the  error.-  But  this  can  only  take  place  with 
the  leave  of  the  member  speaking,  who,  being  in  possession  of  the 
house  cannot  be  interrupted  but  by  a  call  to  order,  or  with  his  own 
consent.-^  If,  therefore,  for  convenience,  or  by  courtesy,  an  oppor- 
tunity is  allowed  a  member  to  correct  any  misunderstanding  of  a 
member  addressing  the  house,  the  indulgence  is  to  be  thankfully 
received ;  but,  though  it  is  an  ordinary  courtesy  of  the  house  to 
allow  a  misrepresentation  to  be  instantly  corrected,  as  often  saving 
time,  and  further  misrepresentation,  it  cannot  be  demanded  as  a 
right  by  any  member,  under  any  circumstances.* 

1598.  When  a  member  rises  to  explain,  and  obtains  possession 
of  the  house  for  that  purpose,  either  temporarily  interrupting  the 
member  speaking,  or  at  the  close  of  his  speech,  it  is  his  duty  to 
make  his  explanation  in  the  manner  already  suggested,  and  then 
resume  his  seat.  If,  in  explaining,  or  after  he  has  made  his  expla- 
nation, or  without  undertaking  to  explain  at  all,  he  proceeds  to 
advert  to  matters  not  necessary  or  proper  for  the  purpose  of  expla- 
nation, or  endeavors  by  new  arguments  and  statements  to  strengthen 
what  he  had  before  said,  or  makes  an  attack  upon  the  person  or 
speech  of  another  member,  he  may  be  caUed  to  order  by  the  house, 
or  by  some  member,  or  by  the  speaker,  and  will  be  directed  by  the 
latter  to  confine  himself  to  simple  explanation.'' 

1599.  Whatever  a  member  says  in  explanation,  —  whether  relat- 
irtg  to  the  words  or  the  meaning  of  his  speech,  —  is  to  be  taken  as 

'true,  and  not  afterwards  called  in  question.  The  words,  which  he 
states  himself  to  have  used,  are  to  be  considered  as  the  words 
actually  used ;  and  the  sense  in  which  he  says  they  were  uttered  as 
the  sense  in  which  they  are  to  be  taken  in  the  debate.*' 

1600.  When  a  member  speaking  yields  to  an  interruption  for  the 
purpose  of  explanation,  he  does  not  thereby  conclude  his  speech,  so 
as  not  to  be  able  to  resume  it,  on  the  conclusion  of  the  explanation ; 


1  Hans.   XX\1L   121,  122;    Cav.  Deb.  L         »  Hans.  (1),  XLL  167;   Same,  (3),  XXX VI 
465;  Hans.   (1),   IV.    159;    Same,   XLT.   164;  551. 

Same,  (-3),  VHI.  113,  114;    Same,  XXXVL         ♦  Hans.  (1),  XLL  167. 
551;  Same,  XXXVII.  1170,  1171.  &  May,  247. 

2  Hans.  (1),  XLI.  167;  Same,  (3),  VIII.  113,         «  Hans.  (2),  XXI.  393. 
114. 


Chap.  III.]        speaking  allowed  until  question  put. 


623 


but  when  the  momber  explaining  has  finished  his  explanaiion,  the 
member  speaking  becomes  again  entitled  to  the  floor,  unless  he  has 
relinquished  absolutely,  and  resumes  his  speech  and  proceeds 
precisely  as  if  he  had  been  interrupted  to  order  and  allowed  to 
proceed. 

1301.  There  seems  to  be  no  reason,  why  a  member,  who  is 
allowed  by  the  indulgence  of  Ihe  member  speaking  to  interrupt  him 
for  the  purpose  of  explanation,  should  not  be  allowed  to  explain 
himself  as  often  as  he  is  misunderstood.  But  if  he  waits,  according 
to  the  rule  of  order,  until  the  member  speaking  has  concluded  his 
speech,  he  would  not  probably  be  allowed  to  speak  more  than  once 
in  explanation. 

1602.  II.  A  second  exception  to  the  rule  as  to  speaking  but 
once  to  the  same  question  is  admitted,  when  a  member,  who  has 
ah-eady  spoken,  desires  to  inform  the  house  of  a  fact.^  A  petition 
being  presented,  praying  the  expulsion  of  a  member,  a  motion  was 
made  to  reject  the  petition,  and  the  debate  thereon  was  adjourned; 
on  resuming  the  debate,  a  member  \\  ho  had  previously  spoken  rose 
to  address  the  house  a  second  time ;  his  right  to  speak  being  called 
in  question,  he  said  "  he  thought  it  was  incumbent  on  him  to  state 
to  the  house,  before  it  came  to  any  d'^cision  on  the  subject,  that  he 
was  in  possession  of  certain  facts  from  an  official  source,  which 
would  entirely  set  aside  the  allegations  of  those  who  had  signed 
the  petition;"  the  speaker  (Mr.  Manners  Sutton)  thereupon 
declared,  "1hat  if  the  member,  who  wished  to  address  the  house, 
did  so  with  the  intention  of  communicating  to  the  house  informa- 
tion derived  from  official  documents,  w^hich  would  controvert  any 
previous  statement  made  to  the  house,  he  had  an  undoubted  right 
to  make  such  a  statement,  before  the  house  could  be  called  upon  t^ 
decide  the  question  before  it."  '^ 

1603.  When  a  member  avails  himself  of  his  right  to  address  the 
house  a  second  lime,  for  the  purpose  of  stating  a  fact,  he  shoidd,  of 
course,  confine  himself  to  the  statement  which  he  is  entitled  to  give, 
with  such  observations  only,  by  way  of  explanation,  as  may  be 
necessary  to  render  it  inteUigible. 

1604.  III.  A  third  exception,  in  which  the  right  of  a  member  to 
address  the  house  more  than  once  on  the  same  question  is  admit- 
ted, occm-s  when  the  house  is  in  a  committee  of  the  whole.     Tliis 

»  Hatscll,  IT.  105;  Grey,  ITT.  357,  416;  Hans.         «  Hans.  (3),  XVHL  510,  555. 
(3),  XVin.  510,  655.     See  also  Ann.  of  Cong. 
[.  1261,  1268 ;  Cong.  Globe,  XI.  462. 


624  LEGISLATIVE    ASSEMBLIES.  [PaRT  VL 

wnll  be  more  fully  explained  in  connection  with  the  proceedings  of 
committees. 

1605.  IV.  It  is  the  ordinary  courtesy  of  the  house,  though  not 
of  strict  right,  to  allow  the  member,  who  introduces  a  motion,  to 
speak  a  second  time,  by  way  of  reply .^  This  privilege  is  conceded 
only  to  the  mover  of  a  distinct  and  original  proposition,  on  its  first 
introduction  to  the  house.  It  does  not  belong  to  a  member  who 
moves  the  reading  of  or  proceeding  with  an  order  of  the  day,  as 
that  a  bill  be  read  a  second  time  ;2  nor  to  the  mover  of  an  instruc- 
tion'^ to  a  committee  of  the  whole  house  ;^  nor  to  the  mover  of  an 
amendment,-^  although  the  original  motion  is  a  merely  formal  one, 
as  that  the  speaker  do  now  leave  the  chair,  and  the  amendment  is 
the  real  subject  of  the  debate.*' 

1606.  The  privilege  of  reply  can  only  be  exercised  once,  in 
answer  to  all  the  objections  brought  forward  against  the  motion. 
The  member  entitled  to  it  should  therefore  wait,  before  speaking, 
untU  all  the  members  opposed  to  his  motion  have  spoken  ;  if  he 
does  so,  it  is  not  customary  (perhaps  not  in  order)  for  other  mem- 
bers to  renew  the  debate ; '  but  if  he  speaks  in  reply,  in  the  course 
of  the  debate,  other  members  are  not  thereby  precluded  from  speak- 
_ng ;  ^  and  thus  the  member  may  in  fact  deprive  himself  to  some 
extent  of  his  privilege  of  reply,  by  exercising  it  prematurely. 

1607.  The  term  reply  denotes  the  extent  of  the  privilege ;  it  is 
not  that  of  speaking  at  large  to  the  question ;  but  is  limited  to 
points  immediately  applicable  to  the  motion.^  If  a  member,  there- 
fore, in  his  reply,  goes  beyond  the  proper  limits,  and  introduces  new 
matter,  other  members  are  at  liberty  to  speak  to  the  question.^^^  So, 
where  the  mover  is  allowed  by  the  house,  to  speak  a  second  time, 
ki  the  course  of  the  debate,  when  he  is  not  in  fact  entitled  by  the 
ordinary  courtesy  of  the  house  to  reply,  —  as  where  the  motion  is 
for  an  amendment,  or  for  an  instruction  to  a  committee  of  the 
whole,  —  the  question  is  stiU  open  for  debate.^i 

»  Pari.  Reg.  XIL  127;  Same,  XXXH.  93,         »  Hans.  (3),  XXXVIII.  13;  Same,  (3),  XLIV. 

94;  Same,  XLIX.  126;  Hans.  (1),  XVI.  744.  98,  383,  443. 

2  Hans.  (1),  III.  641.  ■>  Hans.  (2),  H.  344;  Same,  (3),  XI.  284. 

3  "  Under  these  circumstances,  it  is  not  un-  ^  parl.  Reg.  XXXH.  93,  94. 
common  for  a  member  to  move  an  order  of  the  '  Pari.  Reg.  XXXH.  93,  94. 
day,  or  second  a  motion,  without  remark,  and        '"  Hans.  (3),  XL  284. 

to  reserve  his  speech  for  a  later  period  in  the        "  Hans.  (2),  H.  344.     The  extent  to  which 

debate."    May,  247.  replies  are  allowed,  as  a  matter  of  right,  must 

*  Hans.  (2),  n.  844.  depend,   of  course,  upon   the   rules   of  each 

6  Hans.  (1),  XXI.  1289,  1290;   Same,   (3),     assembly.    Those  of  the  house  of  representa- 

VIII.  724,  725.  tives  in  congress,  are  given  in  a  preceding 

paragraph,  ^  1541. 


CnAP.  III.]  SPEAKING   ALLOWED    UNTIL   QUESTION   PUT.  625 

1608.  V.  In  addition  to  the  excepted  cases,  already  enumerated, 
in  which  a  member  is  entitled  of  right,  or  is  allowed  by  the  ordinary 
rules  of  courtesy,  to  speak  a  second  time,  the  house  may,  at  its 
pleasure,  make  an  exception  on  any  special  occasion,  by  dispensing 
with  its  rule,  in  favor  of  some  particular  member,  or  of  some  par- 
ticular proceeding.!  This  indulgence  usually  takes  place,  without 
any  formal  motion  or  vote,  but  by  the  tacit  acquiescence  of  the 
house;  the  member  to  whom  the  indulgence  is  accorded  being 
allowed,  on  the  suggestion  of  the  speaker,-  or  of  some  member,'^  or 
at  his  own  request,'  to  proceed  without  interruption. 

1609.  The  following  are  examples  of  the  kind  of  indulgence 
alluded  to  :  —  On  resuming  an  adjourned  debate,  "  which  had  been 
principally  adjourned  in  order  to  afford  time  for  a  further  consid- 
eration," the  house,  on  the  suggestion  of  the  speaker,  dispensed 
with  the  rule  in  favor  of  those  members  who  had  already  spoken 
in  the  debate  on  a  previous  day ;  ^  on  resuming  an  adjourned  de- 
bate, the  member  who  introduced  the  question,  having  previously 
spoken,  was  allowed,  at  his  own  request,  to  speak  again  ;  *^  under 
the  peculiar  circumstances  of  the  case,  members  were  allowed  to 
reply  when,  by  the  ordinary  rules  of  courtesy,  they  were  not  allowed 
to  do  so ;  •  so,  it  is  usual,  where  a  personal  appeal  is  made  to  a 
member  who  has  akeady  spoken,  to  allow  him  to  answer  it ;  ^  or, 
where  a  personal  charge  is  brought  against  a  member,'^  or  his  con- 
duct is  arraigned  "^  in  debate,  to  allow  him  to  speak  a  second  time 
to  justify  or  defend  himself;  but,  in  all  these  cases  of  special  leave, 
the  member  indulged  is  bound  to  confine  himself  strictly  within  the 
terms  of  the  permission  given  him.^^ 

1  Hatsell,  n.  106;   Same,  233,  note;  Comm.  «  Pari.  Reg.  XXX.  78;  Same,  XXXV.  550; 

Deb.  XII.  305;  Pari.  Reg.  XXVIL  322.  Hans.  (3),  XXVIII.  663. 

a  Pari.  Reg.  XXVII.  322;  Hans.  (3),  LXVL  '  Hans.  (1),  XIX.  723,  721,  725;  Same,  (3), 

885.  VIII.  724,  725. 

3  Comm.  Deb.  XH.  305;    Cav.  Deb.  L  427;  «  Hans.  (1),  XXXIL  1221. 

Pari.  Reg.  XXXV.  550.  »  Hans.  (3),  XXXII.  820. 

*  Pari.  Reg.  XXXV.  550;  Hans.  (3),  XXVIU.  i"  Hans.  (3),  XL VI.  8S5. 

663.  "  Hans.  (3),  XLVI.  886. 

&Parl.  Reg.   XLIV.  487;    Same,   XXVH. 
822. 

53 


626  LEGISLATIVE   ASSEMBLIES.  [PaRT  VI. 


CHAPTER    FOURTH. 

OF  THE  RULE  THAT  A  QUESTION  IS  OPEN  FOR  DEBATE  UNTIL  IT 
IS  FULLY  PUT  ON  BOTH  SIDES. 

1610.  When  members  no  longer  rise  to  address  the  house  on 
the  question  before  it,  and  the  debate  appears  to  be  concluded,  it  is 
then  the  business  of  the  speaker  to  put  the  question,  in  order  to 
obtain  the  decision  of  the  house  upon  it.  If,  in  consequence  of 
irresolution,  or  the  belief  that  others  are  to  speak,  or  for  any  other 
cause,  members  who  desire  to  speak  suffer  the  question  to  be  put 
before  they  rise  in  their  places,  they  are  nevertheless  entitled  to  be 
heard  and  to  move  amendments,  etc. ;  ^  it  being  a  fundamental 
rule,  "  that  the  house  cannot  be  concluded  in  any  thing,  so  long  as 
any  gentleman  stands  up  to  speak,  that  respect  is  had  to  the 
gentleman  that  stands  up,  to  suppose  that  possibly  he  may  say 
something  to  give  new  light  into  the  matter  coming  to  the  question 
so  as  to  change  the  whole  thing,  it  is  not  known  what  a  gentleman 
will  say  till  he  speaks."  ^  The  right  to  speak  is  so  sacred,  and  the 
exercise  of  it  at  the  pleasure  of  every  member  so  important  to  the 
freedom  of  debate,  that  the  speaker  may  even  be  interrupted  while 
in  the  act  of  putting  the  question,^  on  the  same  principle  that  a 
member,  whilst  speaking,  may  be  interrupted  by  another  member 
risino-  to  order,  or  for  the  purpose  of  calling  the  attention  of  the 
house  to  a  matter  in  which  its  privileges  are  immediately  involved. 
The  limit,  beyond  which  it  is  no  longer  allowed  to  speak  to  a  ques- 
tion, is  when  the  question  has  been  fully  put,  which  implies  that 
the  voices  have  also  been  given,  —  that  is,  when,  in  point  of  fact, 
the  question  has  been  decided,  —  and  nothing  remains  but  for  the 
speaker  to  ascertain  and  declare  the  vote.^ 

1611.  When  a  question  is  put  in  the  form  in  which  it  is  to  be 
taken  by  consent,  —  that  is,  where  the  speaker  merely  inquires 
whether  it  is  the  pleasure  of  the  house  that  such  a  thing  should  be 
done,  and,  no  one  dissenting,  declares  it  to  be  so  ordered,  —  the 
question  is  open  for  debate  until  the  speaker's  declaration. 

1612.  When  a  question  is  put  in  the  usual  form,  in  which  it  is 

1  May,  241;  Scobel,  23,  24;  Romilly,  274.  »  Scobell,  2-3,24;  RomiUy,  274. 

a  By  Sir  WilUam  Coventry.     Grey,  V.  143,         *  May,  241. 
144. 


Chap.  IV.]      speaking  allowed  dxtil  question  put.  627 

to  be  taken  by  the  voices, — '-  that  is,  where  the  speaker  first  calls  for 
the  voices  of  those  in  the  affirmative,  and  then  for  the  voices  of 
those  in  the  negative,  and  llicn  declares  for  the  one  side  or  the 
other,  according  to  his  judgment  of  their  relative  numbers,  —  the 
question  is  open  for  debate  until  the  voices  in  the  negative  have 
been  given.^ 

1613.  When  a  question  is  taken  by  a  division  of  the  hou^-e,  — 
that  is,  where  the  members  on  each  side  go  by  themselves  and  are 
counted  by  tellers  appointed  for  the  purpose,  —  the  question  is 
open  for  debate  until  the  numbers  which  are  the  result  of  the  divis- 
ion, have  been  announced  from  the  chair.- 

1614.  When  a  question  is  taken  by  tiie  voices,  and  the  speaker 
has  declared  that  the  ayes  have  it,  or  the  noes  have  it,  as  the  case 
may  be;  if  his  decision  is  called  in  question,  that  is,  if  any  mem- 
ber rises  and  says  that  the  noes  have  it,  or  the  ayes  have  it,  contrary 
to  the  opinion  expressed  by  the  speaker ;  this  entirely  does  away 
with  the  effect  of  the  speaker's  decision,  and  makes  it  necessary 
to  ascertain  the  sense  of  the  house  by  a  division.  The  question  is 
then  again  open  for  Rebate  ^  until  the  numbers  which  are  the  result 
of  the  division  have  been  announced. 

1615.  When  a  question  is  taken  by  yeas  and  nays,  according  to 
the  practice  in  this  country,  the  question  is  open  for  debate  until, 
after  having  been  stated  by  the  speaker,  the  clerk  has  proceeded 
to  call  the  roll,  and  one  member  at  least  has  answered  to  his  name."* 

1616.  If  a  member  rises  to  speak  w^hilst  the  question  is  yet 
open  for  debate,  but  is  not  observed  by  the  speaker  at  the  time, 
his  right  to  speak  will  be  admitted,  whenever  the  fact  of  his  having 
risen  in  time  is  brought  to  the  knowledge  of  the  house,  and  the 
question  will  be  again  opened  for  debate  in  the  same  manner  as 
before,  even  though  it  may  have  been  taken  in  the  mean  time,  and 
the  result  declared  by  the  speaker.^ 

1  May,  241;  ScobeU,  23,  24;  Romilly,  274.  *  J.  of  IL   VL  446;  Same,  17th  Cong.  1st 

3  llaiis.  { 1 ),  XL  572.  Se-^s.  216,  21". 

8  Pud.  He-,'.  V.  157.  "*  May,  241;  Hatsell,  IL  102,  n.;  Debates  in 

Commons,  27th  January,  17S9. 


658  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 


CHAPTER    FIFTH. 

OF   THE   RULES   RELATING   TO    RELEVANCY  IN  DEBATE. 

1617.  The  rules  of  order  relating  to  debate,  which  have  thus 
far  been  considered,  have  reference  to  the  times  v/hen,  and  the 
circumstances  under  which,  a  member  may  address  the  housp ; 
those  which  follow  relate  to  what  may  or  may  not  be  said  by  a 
member,  or  introduced  by  him  into  his  remarks,  in  addressing  the 
house. 

1618.  If  it  is  essential  to  the  despatch  of  business  in  a  delib- 
erative assembly,  and  to  its  efficient  proceeding,  that  there  should 
be  no  speaking  but  to  a  question,  it  is  not  the  less  so,  that  what- 
ever is  said  in  debate  should  have  reference  to  that  question. 
Hence,  it  is  an  established  rule,  that  every  member  who  speaks 
should  speak  to  the  question.^  This  rule  requires  to  be  explained 
in  reference,  first.)  to  the  question  itself,  a.nd,^secondIi/,  to  the  man- 
ner of  speaking  to  it. 

Section  I.     As  to  the  Question  itself. 

1619.  The  question,  to  which  a  member  in  possession  of  the 
house  is  bound  to  speak,  is  that  wliich  was  last  proposed  from  the 
chair,  which  is  thus  immediately  pending,  and  which,  accord- 
ing to  the  course  of  parliamentary  proceedings,  is  next  to  be  taken ; 
thus,  if,  during  the  pendency  of  any  question,  a  motion  is  made  to 
amend  that  question,  or  for  the  previous  question,  or  to  adjourn  the 
house  or  the  debate,  and  the  question  is  proposed  on  such  motion, 
the  question  so  proposed  is  the  question  immediately  before  the 
house,  to  which  members  rising  afterwards  must  address  them- 
selves. 

1620.  As  every  member,  when  a  question  is  pending,  has,  in  gen- 
eral, the  same  right  to  introduce  a  motion  with  a  speech,  as  he  has 
to  introduce  an  original  motion  in  that  manner,  it  is  competent  to 
any  member,  in  the  course  of  a  debate,  to  rise  and  address  himself  to 
a  question  which  he  intends  to  introduce,  provided  that  question 
is  one  which  may  then  regularly  be  moved. 

1621.  If  a  point  of  order,  arising  in  the  course  of  a  debate,  is 

1  See  also  Cong.  Globe,  IH.  261. 


Chap.  V.]  relevancy  in  debate.  629 

made  ihe  subject  of  a  formal  motion  and  question,  the  rules  already 
slated  are  applicable  ;  if  no  such  formal  motion  or  (piestion  is  made, 
every  member  may  speak  to  a  point  of  order,  either  aheady  sug- 
gested, or  which  he  himself  proposes  to  suggest. 

1622.  If  a  member,  rising  to  speak,  mistakes  the  question, 
through  inadvertence,  or  ignorance,  or  misapprehension,  he  may  be 
interrupted  by  the  house,  or  by  the  speaker,  whose  duty  if  more 
particularly  is  to  do  so,  and  be  set  rigiit ;  after  which,  he  may  pro- 
ceed, addi-essing  himself  to  the  question.^ 

1623.  It  frequendy,  indeed  almost  continually,  happens,  that 
when  a  question  is  pending,  and  under  discussion,  another  question 
is  moved  upon  it,  which,  for  the  time  being,  supersedes  or  suspends 
the  first.  When  this  takes  place,  the  secondary  or  last  moved 
question  becomes  the  question  immediately  before  the  house,  and 
is  that  to  which  members  in  speaking  must  address  themselves. 
As  the  main  question  is  then  suspended,  and  cannot  be  spoken  to, 
it  is  often  very  important  to  know,  how  far  it  is  involved  in,  and 
open  to  discussion,  under  the  secondary  question;  inasmuch,  as 
by  the  disposition  of  the  latter,  the  former  is  frequently  disposed  of, 
at  the  same  time,  either  temporarily  or  finally. 

1624.  There  are  some  secondary  questions,  which  necessarily 
involve  the  main  questions  upon  which  they  are  moved;  inasmuch 
as  a  decision  of  them  one  way  includes  a  decision  of  the  main 
question;  and  when  questions  of  this  description  are  moved,  the 
merits  of  the  main  question  are  open  for  discussion. 

1625.  A  motion  to  adjourn  the  house  is  a  secondary  motion,  the 
decision  of  which  one  w^ay  involves  a  decision  of  the  main  ques- 
tion; as,  if  carried  in  the  affirmative,  the  main  question  is  sup- 
pressed for  the  time  being;  and  consequently,  on  a  motion  to 
adjourn,  the  merits  of  the  main  question,  that  is,  the  question 
pending  and  upon  which  the  adjournment  of  the  house  is  moved, 
are  open  to  discussion,  on  the  ground  of  the  present  importance 
and  urgency  -  of  that  question.^ 

1626.  A  motion  to  adjourn  the  debate  is  also  a  secondary 
motion,  the  decision  of  which  one  way,  that  is,  in  the  affirmative, 

>  Grey,  IX.  39.  the  session  of  1849,  a  stricter  pnctice  has  l.een 

»  Hans.  (3),  LXII.  219.  enforced,  and  Mr.  Speaker  has  called  upon 

3  It   seems  that   "  Considerable  laxity  had,  members  to  confine  their  observations  upon 

until   recently,   prevailed   in   allowing  irrele-  such  motions  to  the  question  properly  before 

vant  speeches  upon  questions  of  adjournment,  the   house,  namely,  whether  the  house  should 

which   were  regarded   as  exceptions    to  the  adjourn  or  not."     May,  244. 
general  rule:  but  since  the  commencement  of 

.53* 


630  LEGISLATIVE   ASSEMBLIES.  [PaRT  VL 

involves  a  decision  of  the  main  question,  which  is  thereby  post- 
poned for  a  time.  In  this  motion,  therefore,  the  main  question  is 
clearly  involved,  and  may  be  spoken  to  on  its  merits.^ 

16:27.  The  previous  question  is  a  motion  of  the  same  kind,  the 
decision  of  which  either  way  involves  to  a  certain  extent  the 
decision  of  the  main  question.  If  the  previous  question  is  carried 
in  the  affirmative,  the  main  question  must  be  taken  immediately, 
without  further  debate,  or  opportunity  for  amendment,  and  subject 
to  all  the  objections,  either  as  to  time  or  as  to  form,  which  can  then 
be  urged  against  it,  which  objections  may  be  fatal ;  on  the  other 
hand,  if  the  previous  question  is  carried  in  the  negative,  the  main 
question  is  thereby  suppressed  for  the  day ;  so  that  whichever  way 
the  previous  question  may  be  decided,  the  decision  of  it  involves,  or 
at  any  rate  affects,  the  decision  of  the  main  question.  On  the 
previous  question,  therefore,  the  merits  of  the  main  question  are 
open  to  discussion. 

1628.  There  are  other  secondary  questions  which  do  not  neces- 
sarily, but  may  or  may  not,  according  to  their  form,  involve  the 
main  questions  upon  which  they  are  moved.  Motions  to  amend  are 
of  this  description ;  if  it  is  moved  to  amend  in  such  a  form,  that,  if 
the  motion  is  carried  in  the  affirmative,  the  effect  of  it  is  to  suppress 
the  main  question  as  originally  moved,  the  merits  of  that  question 
are  clearly  involved  in  the  question  of  amendment ;  if  made  in  such 
a  form,  that,  if  decided  either  way,  the  main  question  remains  as 
before,  then  the  merits  of  that  question  are  not  involved  in  the 
question  of  amendment. 

1629.  A  motion  to  amend,  by  leaving  out  aU  but  the  formal  or 
technical  words  of  the  main  question,  for  the  purpose  of  inserting  a 
different  motion,  is  a  motion  of  the  former  description,  as  if 
resolved  in  the  affirmative,  the  words  of  the  motion  as  originally 
made  are  suppressed,  and  which  consequently  involves  in  its 
decision  a  decision  of  the  main  question. 

1630.  A  motion  to  amend,  by  leaving  out  certain  words  either 
simply  or  for  the  purpose  of  adding  other  words,  may  or  may  not 
involve  the  merits  of  the  main  question,  according  to  the  effect 
which  the  amendment  wiU  have  upon  it,  if  it  should  be  adopted. 
The  same  may  be  said  of  motions  to  amend  by  inserting  or  adding 
words.  In  determining  how  far  the  main  question  is  involved  in 
amendments  of  this  character,  it  seems  pro})cr  to  inquire,  whether, 
after  the  question  is  taken  on  the  amendment,  the  main  question 

1  Pari.  Deb.  III.  1G4;    Hans.  (-3),  LXII.  10.",  174. 


Chap.  V.]  relevancy  in  debate.  631 

will  be  open  for  discussion  as  before ;  and  according  as  it  will  or 
will  not  be  so  open,  to  consider  it  involved  in  or  independent  of 
the  secondary  question. 

1631.  The  following  case  affords  an  illustration  of  this  rule.  A 
resolution  reported  by  the  comiiiittee  of  supply  being  under  con- 
sideration, it  was  moved  to  amend  by  reducing  the  sum  granted; 
a  member  thereupon  rising  and  objecting  to  the  resolution  gener- 
ally, he  was  called  to  order  by  Mr.  Addington,  who  had  been 
speaker,  on  the  ground,  that  it  was  not  open  to  him  to  object  gen- 
erally to  the  re^^olution,  after  the  motion  for  amending  it;  and  the 
speaker.  Sir  John  INIitford,  said,  "that  the  member  would  have  an 
opportunity  of  opposing  the  whole  of  the  resolution,  when  the 
question  was  put  upon  the  resolution  generally."  ^ 

1632.  The  foregoing  application  of  the  rule  as  to  relevancy  is 
derived  entirely  from  the  practice  of  the  British  parliament,  where 
it  prevails  exclusively.  In  this  country,  in  which  the  use  of  sub- 
sidiary or  secondary  questions,  for  the  disposition  of  other  ques- 
tions, is  much  more  common,  than  it  is  in  parliament,  the  ten- 
dency has  undoubtedly  been  to  prevent  the  debate  on  these  mo- 
tions, from  branching  out  into  the  merits  of  the  main  question, 
although  the  latter  are  somewhat  involved,  at  least  on  one  side. 
Thus,  it  has  been  held  in  congress,  that  the  merits  of  the  main 
question  are  not  open  for  discussion,  on  the  question  of  discharging 
the  committee  of  the  whole  ;-  on  postponing  to  a  day  certain;^  on 
questions  to  recommit,*  to  commit,'*  or  refer ;  "^  on  motion  for  a  caU 
of  the  house ; '  on  motion  for  leave  to  introduce  a  bill ;  ^  on  motion 
for  the  previous  question  under  the  common  parliamentary  law ;  ^ 
on  motion  to  make  a  bill  a  special  order ;  ^^  on  the  question  that  a 
committee  have  leave  to  send  for  persons  and  papers.^^    • 

1633.  On  the  other  hand,  it  has  been  decided  in  the  same  as- 
sembly that  the  merits  are  open  for  discussion  on  a  motion  to  post- 
pone indefinitely ;  ^^  on  passing  a  bill ;  ^^  on  filling  blanks ;  ^^  and  on 
resolutions  of  inquiry.^^    On  questions  of  aiiiendment ; '^  and  on 

»  Pari.  Reg.  LXT.  258.  ^  Cong.  Globe,  VIII.  178;  Same,  415. 

2  Reg.  of  Deb.  11.  Part  2,  794,  2371;  Cong.         »  Cong.  Globe,  X.  53,  59. 
Globe,  III.  249,  253.  '"  Cong.  Globe,  IX.  101. 

'Reg.    of   Deb.   II.    Part   2,  2510;    Cong.        "  Cong.  Globe,  XIII.  356.      . 
Globe,  III.  245.  '-  Cong.  Globe,  IV.  88. 

*  Reg.  of  Deb.  IV.  Part  1,  544.  "  Cong.  Globe,  IV.  125. 

s  R.>g.  of  Deb.  VI.  Part  2,  757,  865;  Same,        "  Reg.  of  Deb.  II.  Part  2,  2612. 
IV.  Part  2,  1965,  196G.  >^  Reg.  of  Deb.  III.  788,  789. 

6  Reg.  of  Deb.  X.  Part  2, 2618;  Cong.  Globe,        lo  Reg.  of  Deb.  III.  830;   Same,  IV.  Part  1, 

III.  ;i06.  669;    Same,   IX.    P:ut   2,   1662;    Same,   IV. 

'  Reg.  of  Deb.  VI.  Part  2, 1037.  Part  1,  871,  874. 


632  LEGISLATIVE  ASSEMBLIES.  [PaRT   VJ. 

questions  to  print  ;^  the  merits  of  the  main  question  are  open  or 
not  according  to  circumstances.  Questions  to  reconsider,^  and 
questions  to  instruct  a  committee,^  do  not  generally  open  the  whole 
subject,  but  only  according  to  the  nature  of  each  motion. 


Section  II.     As  to  the  Manner  of  Speaking  to  the  Question. 

1634.  In  regard  to  the  question  itself,  there  can  seldom  be  any 
diliiculty  in  applying  the  rule  as  to  relevancy,  and  in  compelling 
members  to  observe  it.  But,  when  the  question  is  not  mistaken, 
and  a  member  is  professedly  speaking  to  that  Avhich  is  before  the 
house,  it  is  often  a  matter  of  extreme  difficuliy,  in  the  first  place,  to 
decide  whether  he  is  or  is  not  wandering  from  the  question ;  and, 
secondly,  if  need  be,  to  restrain  the  debate  within  the  proper  limits. 

1635.  This  difficulty  is  partly  inherent  in  the  natm-e  itself  of  the 
subject,  which  makes  it  difficult,  if  not  impossible,  to  decide  before- 
hand, in  what  manner  a  question  may  or  may  not  be  pertinently 
treated  ;  in  part,  also,  it  lies  in  the  danger  there  would  be  of  infring- 
ing upon  the  freedom  of  debate  if,  on  every  occasion,  a  member 
could  be  obliged  in  advance,  to  explain  the  relevancy  of  every 
topic  which  he  proposed  to  introduce  into  the  debate ;  and  partly 
in  the  difficulty  there  frequently  is  in  perceiving  the  relevancy  of 
a  topic,  which  a  member  introduces  into  his  speech,  until  he  has 
concluded  what  he  had  to  say  on  that  topic. 

1636.  Much,  therefore,  must  be  left  to  the  judgment  and  dis- 
cretion of  the  members,  as  to  the  topics  which  they  introduce,  and 
the  manner  in  which  they  treat  them,  when  addressing  the  house ; 
and  much  left  to  the  patience,  forbearance,  and  good  feeUng  of  the 
house  itself.  It  is  to  be  considered,  on  the  one  hand,  that  mem- 
bers, who  desire  to  possess  or  retain  any  influence  with  the  house, 
will  seldom  trespass  in  this  respect,  without  at  the  same  time  be- 
coming so  obviously  disorderly,  by  personalities  or  otherwise,  as 
clearly  and  unequivocally  to  subject  themselves  to  the  animad- 
version of  the  house  ;  and,  on  the  other  hand,  that  the  house  will 
seldom  be  harsh  in  its  judgment,  or  severe  in  the  application  of  its 
rules,  where  it  is  manifest  that  the  member  speaking  is  honestly 
addressing  himself  to  the  question,  and  sincerely  desirous  to  inform 
the  house  of  what  he  deems  important  to  its  decision. 

1  Reg.  of  Deb.  IV.  Part  2,  1490;  Same,  X.      Globe,  V.  86;  Same,   VL  145;  Same,  XVIIL 
Part  4,  4273.  4274.  514;  Same,  XX.  -517. 

2  Reg.   of  Deb.  XII,  Part  2,   1990;    Cong.         »  Cong.  Globe,  HI.  262. 


Chap.  V.]  relevancy  in  debate.  633 

1637.  The  rules  relating  to  relevancy  in  debate,  therefore,  though 
established  with  a  view  to  their  enforcement  by  Ihe  house,  as  well 
as  for  the  dii-ection  and  government  of  the  members  individually, 
are  much  more  effectual  in  the  latter  th&n  in  the  former  mode  of 
their  operation.  It  is  in  the  power  of  the  members,  and  it  is  un- 
doubtedly their  duty,  to  observe  these  rules  with  strictness;  if  they 
fail  to  do  so,  it  then  becomes  the  duty  of  the  speaker  and  of  the 
house,  to  endeavor  to  restrain  them  for  the  future,  within  the  proper 
limits  of  order ;  and,  also,  as  far  as  may  be,  to  do  away  with  the 
effect  of  any  irregularity,  which  may  have  been  committed  before 
it  could  be  prevented,  or  which  may  have  passed  at  the  time  with- 
out notice,  or  was  perhaps  considered  of  so  trivial  a  character  as  to 
be  deserving  of  no  attention. 

1638.  In  the  earlier  period  of  parliamentary  history,  members 
were  at  liberty  to  address  the  house,  without  a  question  being  first 
proposed,  until  from  the  turn  of  the  debate,  a  question  had  been 
framed  by  the  speaker,  and  proposed  to  the  house ;  after  which, 
those  who  spoke  were  required  to  speak  to  the  question.  At  this 
period,  when,  it  may  be  presumed,  a  greater  laxity  of  debate  was 
allowed,  than  is  now  in  theory,  at  least,  regarded  as  proper,  it  seems 
to  have  been  referred  to  the  house  itself,  to  determine  whether  a 
member  speaking  should  be  required  to  confine  himself  to  the  ques- 
tion ;  the  rule  being,  as  stated  by  Scobel :  ^  "  That  if  any  man 
speak  impertinently,  or  beside  the  question  in  hand,  it  stands  with 
the  orders  of  the  house,  for  Mi-.  Speaker  to  interrupt  him,  and  to 
know  the  pleasure  of  the  house,  whether  they  will  further  hear  him." 
The  rule  remains  substantially  the  same,  since  the  introduction  of 
the  modern  practice,  which  precludes  all  spealdng  but  to  a  question 
already  pending  or  to  be  introduced  by  the  member  speaking ;  but 
without  the  qualification,  referring  it  to  the  decision  of  the  house, 
whether  the  member  interrupted  by  the  speaker,  or  otherwise  called 
to  order,  shall  be  permitted  to  proceed.  The  house  may  and  often 
does  indulge  a  member  in  this  respect ;  but,  in  general,  the  speak- 
er's judgment  is  acquiesced  in.  The  rule,  as  to  relevancy  in  debate, 
cannot  be  better  expressed,  than  in  the  words  of  ]\Ir.  Speaker  Corn- 
wall, "  that  no  matter  introduced  into  a  debate,  which  the  question 
before  the  house  cannot  decide  upon,  is  regularly  debatable."  - 

1639.  When  a  member  speaking  in  debate  wanders  from  the 
question,  and  introduces  irrelevant  topics,  or  treats  the  subject  im- 
pertinently, the  house  may  either  allow  him  to  proceed  without  in- 

1  Scobel,  31,  32,  33.  «  Pari.  Keg.  (2),  IX.  466. 


634  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

(erruption,  or  he  may  be  interrupted  to  order  ;  if  interrupted  by  the 
hou^e  generally,  or  by  any  member,  the  speaker  then  gives  his 
opinion  upon  the  point  of  order,  either  sustaining  the  caU,  or  sus- 
taining the  member ;  if  the  former,  he  acquaints  the  member  wherein 
he  is  disorderly,  and  that  he  must  speak  to  the  question  ;  if  the  lat- 
ter, he  directs  the  member  to  proceed ;  sometimes,  however,  where 
the  circumstances  of  the  case  seem  to  require  it,  reminding  him  of 
the  question,  and  stating  to  him  the  line  of  remark  which  he  is  at 
liberty  to  pursue.  The  speaker  may  also  call  a  member  to  order, 
without  the  intervention  of  the  house,  or  of  any  other  member. 
The  duty  of  the  speaker  is  performed  when,  upon  a  member's  be- 
ing called  to  order,  and  as  often  as  the  caU  is  repeated,  he  states 
the  rule,  and  admonishes  the  member  to  proceed  in  order ;  if,  not- 
withstanding the  call  to  order,  the  offence  is  repeated,  and  tolerated 
by  the  house,  no  blame  can  be  imputed  to  the  speaker.^ 

1640.  K  a  member,  professedly  speaking  to  the  question,  and 
not  under  any  misapprehension  as  to  its  terms  or  subject,  addresses 
himself  to  some  other  topic,  not  embraced  in  the  question,  he  is 
clearly  out  of  order,  and  cannot  be  allowed  to  proceed ;  unless 
upon  the  ground  of  an  exception  specially  made  in  •  his  favor,  or 
unless  his  case  comes  within  some  exception  resulting  from  a  gen- 
eral or  particular  usage  of  the  house. 

1641.  1.  In  every  case,  it  is  competent  for  the  house  to  dis- 
pense with  its  rule,  in  the  manner  aheady  stated,  and  thus  create 
an  exception,  for  the  special  occasion,  in  favor  of  a  particular  mem- 
ber. 

1642.  2.  Where  the  member,  on  being  inten-upled,  states  that 
it  is  his  intention  to  conclude  with  a  motion,'-^  or  where  that  fact  is 
aheady  known  to  the  speaker  or  understood  by  the  house;^ 

1643.  3.  Where  the  deviation  from  order,  of  which  the  member 
complained  of  is  guilty,  is  one,  which  has  been  tolerated  by  the 
house,  in  other  members,  until  it  has  become  the  practice.^ 

1644.  4.  Where  the  member  has  deviated  from  the  question 
merely  in  answer  to  other  members,  who  had  deviated  from  it 
before  Mm.'' 

1645.  5.  Where  the  topics  commented  upon  by  the  member, 
who  is  interrupted  to  order,  have  been  suffered  by  the  house  to  be 


1  The  authority  of  the  presiding  officer,  in  »  Hans.  (3),  XXVII.  325. 

this  respect,  is  usually  the  subject  of  a  special  *  Hans.  (3),  IV.  1251;  Same,  LXIII.  512. 

rule.                           '  "^  Pari.  Reg.  VII.  (2),  154;  Pari.  Reg.  XXV. 

«  Hans.  (3),  XXIX.  696.  809,  311. 


Chap.  V.]  belevancy  in  debate.  635 

introduced  into  the  debate,  and  commented  upon  by  other  mem- 
bers.i 

1646.  6.  Where  the  observations  of  the  member,  who  is  inter- 
rupted to  order,  are  in  explanation  of  expressions  used  by  him  on  a 
former  occasion,  and  which  have  been  adverted  to  by  other  mem- 
bers in  Ihe  debate.-  But  tliis  will  not  justify  a  member  in  going 
from  the  question,  for  the  purpose  of  correcting  a  misrepresentation 
of  any  thing  he  may  have  said  on  a  former  occasion,  not  adverted 
to  in  the  present  debate.^ 

16 17.  In  all  those  cases,  however,  in  which  a  member  is  allowed, 
by  the  special  indulgence  of  the  house,  in  his  favor,  to  s]5eak  to 
topics  not  strictly  relevant  to  the  question,  (and  tliis  includes  all 
the  above-named  classes  of  exceptions  except  the  second,)  such 
member  is  bound  to  confine  himself  strictly  to  the  topic,  in  refer- 
ence to  which  he  is  so  indulged,  and  not  to  treat  it  in  such  a  man- 
ner, as  to  lead  to  or  provoke  further  debate.* 

1648.  If  a  member,  without  addressing  himself  to  any  other 
topic,  than  the  question  before  the  house,  or  one  which  is  clearly 
embraced  within  its  terms,  pursues  a  line  of  remark,  the  relevancy 
of  which  is-  called  in  question,  it  is  often  extremely  difficult  to 
decide,  whether  he  shall  be  allowed  to  proceed  or  not.  On  the 
one  hand,  a  just  regard  to  the  privileges  and  dignity  of  the  house 
demands  that  its  time  should  not  be  wasted  in  idle  and  fruitless 
discussions;  on  the  other,  freedom  of  debate  requires,  that  every 
member  should  have  full  liberty  to  state,  for  the  information  of  the 
house,  whatever  he  honestly  thinks  may  aid  it,  in  forming  a  judg- 
ment upon  any  question  under  its  consideration.  The  rule,  there- 
fore, as  to  the  relevancy  of  remarks  made  in  debate,  should  have 
in  view  the  preservation  of  the  privileges  and  dignity  of  the 
house,  so  far  as  that  can  be  accomplished,  without  infi-inging  upon 
the  freedom  of  debate ;  and  this  seems  to  be  attained  by  the  only 
rule  on  this  subject,  which  can  be  collected  from  the  records  of  par- 
liamentary experience ;  namely,  that  a  member,  speaking  in  debate, 
is  entitled  to  proceed,  unless  in  the  judgment  of  the  speaker  and  of 
the  house,  it  is  clear,  that  his  observations  are  not  applicable  to  the 
question. 

1649.  An  example  or  two,  of  the  application  of  the  rule,  will  be 
useful,  by  way  of  explanation.  A  petition  being  presented,  in  the 
house  of  commons,  April  22,  1831,  in  favor  of  the  reform  bill,  and 

1  ILm?.  (1),  I.  801.  8  Han?.  (1),  Vll.  11S2,  1183. 

,  3  Hans.  (1),  XI.  75r,  *  Hans.  (1),  I.  bOl;  Same,  XI.  755. 


bo6  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI 

a  motion  made  that  the  petition  be  brought  up,  a  member  addressed 
the  house  upon  that  question,  and,  in  the  course  of  his  speech,  said : 
"  The  question  was,  whether  that  parliament  was  to  be  dissolved, 
and  the  members  sent  back  to  their  constituents,  because  they  had 
pronounced  an  opinion  that  the  English  representation  should  not 
be  reduced."  Being  called  to  order,  on  the  ground  that  there  was 
no  question  before  the  house,  on  which  they  could  be  addressed  in 
that  manner,  the  speaker,  Mr.  Maimers  Sutton,  said :  "  The  ques- 
tion arishig  out  of  the  petition  was  parliamentary  reform.  The 
question  for  him  to  decide  was,  whether  or  not  the  observations  of 
the  member  speaking  had  a  proper  application  to  that  question ; 
not  whether  he  had  strictly  adhered  to  what  was  contained  within 
the  four  corners  of  the  petition,  but  whether  the  general  tenor  and 
scope  of  his  speech  did  not  come  within  the  subject-matter  intro- 
duced to  the  house  by  a  petition  on  the  subject  of  reform ;  and  he 
(the  speaker)  must  say,  that  according  to  his  opinion  of  the  rules 
and  orders  of  that  house,  he  could  not  see,  that  the  observations  of 
the  member  were  not  applicable  to  it."  ^ 

1650.  So,  where  a  member,  addressing  the  house  on  the  subject 
of  a  petition  complaining  of  distress,  was  called  to  order,  on  the 
ground  of  the  irrelevancy  of  Ms  remarks,  the  speaker,  Mr.  Manners 
Sutton,  said,  that  "  when  a  petition  was  on  the  table,  complaining 
of  distress,  it  was  very  difficult  to  say,  what  members  should  not 
speak  of,  as  occasioning  that  distress.  He  could  not  therefore  sup- 
port the  member  in  rising  to  order."  ^ 

1651.  In  another  case,  where  a  petition  had  been  presented  for 
the  better  observance  of  the  Lord's  day,  and  a  member,  in  speaking 
upon  it,  took  occasion  to  make  some  remarks  upon  two  petitions 
of  a  similar  description  presented  the  day  before,  and  upon  the 
motives  of  the  petitioners,  the  member  was  called  to  order  on  the 
gi'ound,  that  it  was  disorderly  to  impute  motives  to  the  petitioners, 
whose  petition  was  presented  on  a  former  night,  and  was  not  then 
before  the  house.  The  speaker,  Mr.  Manners  Sutton,  said,  that 
"  with  respect  to  the  reference  to  a  petition  presented  on  a  former 
day,  if  it  were  on  the  same  subject  as  the  present  petition,  he  could 
not  say,  that  applying  motives  to  those  petitioners  was  disorderly. 
In  all  these  matters,  a  good  deal  must  be  left  to  the  good-sense, 
the  good  feeling,  the  taste,  and  the  propriety  of  honorable  members 
themselves."  ^ 


1  Hans.  (3),  III.  1812,  1817,  1818.  s  Hans.  (3),  XVL  292. 

«  Hans.  (3),  I.  1329. 


Chap.  V.]  relevancy  in  debate.  637 

165:2.  If,  when  a  member  is  called  to  order,  on  the  ground  of  the 
irrelevancy  of  his  remarks,  all  that  can  be  said  is,  that  it  docs  not 
appear  in  what  manner  his  remarks  are  applicable  to  the  question, 
the  member  will  be  allowed  to  proceed;  the  speaker  sometimes 
reminding  him  of  the  terms  of  the  question,  or  informing  him  under 
what  circumstances  his  remarks  would  */r  would  not  be  in  order. 
Thus,  a  member  being  called  to  order  ow  the  ground  that  Ihe  mem- 
ber interrupt ing  him  could  not  see  in  what  manner  Ihe  circum- 
stances he  was  mentioning  could  apply  to  the  question  before  the 
house,  the  speaker,  Mr.  Manners  Sutton,  said,  "that  he  took  it  for 
granted,  that  the  member  would  bring  his  observations  to  bear  upon 
the  motion  before  the  house,  and  that  he  meant  to  make  some 
proposition  for  the  consideration  of  the  house."  The  member  1  here- 
upon remarking,  that  the  facts  to  which  he  had  alluded  called  for 
serious  consideration,  the  speaker  reminded  him  of  the  terms  of  the 
question,  and  allowed  him  to  proceed.^  In  another  case,  where  a 
member  was  called  to  order  on  similar  grounds,  Mr.  Speaker 
Abbott  said,  "  he  conceived,  that  the  member's  observations  were 
not  strictly  applicable  to  the  question  ;  but  he  was  always  delicate 
in  interfering  on  such  occasions,  as  it  was  difficult  to  know  whether 
the  member  would  not  conclude  wdth  something  that  would  bring 
him  within  order."  So,  again,  a  member  being  called  to  order,  and 
inquiry  made  of  the  speaker,  whether  the  arguments  of  the  member, 
with  respect  to  the  monarchy  and  the  house  of  lords,  had  any  thing 
to  do  with  the  question  before  the  house,^  the  speaker  said,  that 
"  if  the  member  made  the  supposition  alluded  to  for  the  purpose  of 
reviving  a  discussion,  which  had  already  been  terminated,  he  was 
out  of  order  ;  but  if  he  considered  his  supposition  pertinent  to  the 
question  l^efore  the  house,  he  was  quite  in  order."  ^ 

1653.  Where  the  subject  of  a  motion  immediately  pending  and 
under  consideration  is  the  same  with,  or  involved  in,  the  subject  of 
another,  matter  also  pending  but  not  then  before  the  house,  —  the 
two  having  different  purposes  in  view,  —  it  is  not  competent  to  a 
member  addressing  the  house  on  the  former,  to  enter  into  the  merits 
of  the  latter,  notwithstanding  the  subject  is  the  same.  Thus,  where 
a  member,  having  moved  for  certain  papers  relating  to  slaves 
imported  into  the  West  Indias,  was  proceeding  to  remark  that 
these  papers  would  show,  that  the  king  was  entitled  to  a  duty  on 
all  such  slaves,  and  that  consequently  before  any  proceeding  could 

» .Hans.  (3),  XVIH.  89.  Speaker  Addinf^on,    Pari.    Reg.    XXXVHL 

5  "  Any  argument,  however  bad  and  absurd,     366. 
does  not  therefore  become  disorderly."    Mr.         '  Hans.  (3),  XXXH.  803. 

54 


638  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

take  place  in  reference  to  the  bill  before  the  house,  to  abolish  the 
trade,  his  majesty's  consent  must  first  be  obtained,  he  was  inter- 
rupted to  order,  on  the  ground  that  he  could  not,  consistently  with 
order,  preface  a  motion  for  papers,  by  a  long  speech  on  the  merits 
of  a  bill,  which  he  would  have  another  opportunity  of  discussing, 
and,  thereupon,  the  speaker,  Mr.  Abbott,  "  begged  leave  to  remind 
the  member  how  far  he  was  in  order,  and  how  far  not.  Any  reasons, 
showino-  the  propriety  of  his  motion,  were  certainly  in  order;  but  to 
comment  upon  or  discuss  the  question  (to  which  that  motion 
related,  namely,  the  bill  to  aboHsh  the  slave-trade)  was  out  of  order 
and  a  transgression  of  the  rules  of  the  house."  ^ 

1654.  Where  the  remarks  of  a  member  are  strictly  relevant  to 
the  subject  of  the  question,  but  are  extended  into  a  wider  range 
than  seems  necessary,  the  member  will  nevertheless  be  allowed  to 
proceed,  unless  restrained  by  the  house.  Thus,  where,  on  a  motion 
for  the  production  of  a  paper  relating  to  the  volunteer  force,  a 
debate  on  the  general  subject  ensued,  and  a  member  rose  to  order, 
and  objected  that  if  the  motion  was  merely  for  the  production  of 
papers,  it  was  wrong  to  go  into  the  subject  of  it  (the  volunteer 
force)  at  such  length,  the  speaker,  Mr.  Abbott,  said,  that  "  the 
motion  had  certainly  branched  out  into  a  more  general  range,  than 
such  a  motion  seemed  to  require ;  but,  it  was  in  the  discretion  of 
the  house,  to  permit  or  to  restrain  such  extraneous  proceedings ;  he 
did  not  feel  warranted  in  interfering  to  check  it  before,  nor  did  he 


?5  f 

now.  " 


CHAPTER   SIXTH. 

OF  THE  KULES  RELATING  TO  THE  SOURCES  FROM  WHICH  THE 
STATEMENTS  INTRODUCED  BY  A  MEMBER  IN  DEBATE  ARE 
DERIVED. 

1655.  It  is  the  right  of  every  member,  (and  it  may  also  be  said 
to  be  his  duty,)  in  addressing  the  house  upon  any  subject  before  it, 
to  give  his  own  opinion,  and  also  to  state  any  facts  or  circum- 
stances, which,  in  his  judgment,  may  assist  the  house  in  forming 
an  opinion   upon  the  question.'^      The   facts   and   circumstances, 

1  Hans.  (1),  II.  61.3,  614.  «  Hans.  (3),  XLVI.  158,  159. 

»  Hans.  (1),  VI.  S47. 


Chap.  VI.]  sources  of  statements  in  debate.  C39 

which  a  member  is  thus  at  liberty  to  state,  are  not  governed  by  any 
rules  analogous  to  the  rules- of  evidence,  which  prevail  in  lhe  ordi- 
nary courts  of  justice.  Whatsoever  may  help  an  individual  member 
to  form  his  opinion  may  also  aid  other  members  in  forming  theirs; 
and  may  therefore  be  stated,  unless  objectionable  on  some  of  the 
grounds,  known  and  established  in  the  law  of  parliament. 

I606.  The  facts  and  circumstances,  stated  by  a  member  in 
debate,  so  far  as  relates  to  the  weight  to  which  they  are  entitled,  in 
consideration  of  the  sources  from  whence  they  are  derived,  are  of 
two  kinds,  namely;  those  which  lie  within  his  own  knowledge, 
either  personal,  or  resting  in  belief,  and  those  which  depend  upon 
the  authority  of  others.  Facts  and  circumstances  of  the  first  kind, 
resting  upon  the  personal  responsibility  of  the  member  himself,  may 
be  stated  at  his  pleasure ;  those  of  the  second  kind,  resting  upon 
the  authority  of  others,  may  be  introduced  by  the  member,  and 
made  a  part  of  his  speech,  provided  they  come  from  competent  and 
proper  sources. 

1657.  There  is  also  a  third  kind,  which  do  not  belong  exclu- 
sively within  the  personal  knowledge  or  belief  of  the  member,  nor 
are  introduced  on  the  authority  of  extraneous  sources,  but  are 
equally  within  the  knowledge  of,  and  accessible  to,  all  the  mem- 
bers. Facts  and  circumstances  of  this  description  are  those  which 
are  found  upon  the  journals  of  the  house;  or  which  are  contained 
in  papers  and  documents,  in  its  possession,  as  petitions  and  other 
documents  of  the  like  nature,  reports  of  committees,  minutes  of  evi- 
dence taken  at  the  bar  of  the  house,  and  papers  produced  by  order 
of  the  house  and  laid  before  it  from  public  offices,  or  otherwise  ;  or 
which  exist  in  the  public  records,  as,  for  example,  acts  of  parlia- 
ment. In  considering  the  subject  of  the  present  chapter,  it  will  be 
convenient  to  notice, y7/'5^,  statements  made  by  members  of  their 
own  knowledge,  or  belief;  secondly^  those  derived  from  the  records, 
etc.,  of  the  house  itself,  or  other  public  records ;  and  thirdly^  those 
resting  upon  extraneous  authority. 


Section  I.     Statements   made   bt  Members  of   their  own 

Knowledge  or  Belief. 

1658.  Facts  and  circumstances,  lying  within  the  personal  knowl- 
edge of  the  member  stating  them,  or  restmg  in  his  belief,  are  stated 
on  his  individual  responsibility  as  a  member.  If  truly  stated, —  so 
far  as  his  personal  knowledge  is  concerned,  —  or  honestly  stated,  — 


640  LEGISLATIVE   ASSEMBLIES.  [PaRT    Vl. 

SO  far  as  they  depend  upon  his  belief,  —  his  responsibility  as  a 
member  is  fully  acquitted ;  but,  if  untruly,  or  dishonestly  stated,  he 
will  be  subject  to  the  animadversion  of  the  house,  and  even  to  pun- 
bhment,  if  the  house  should  think  proper  to  inflict  it. 


Section  II.     IMatter  introduced  from  the  Journals  or  Papers 
OF  THE  House,  or  other  Public  Records. 

1659.  In  introducing  matter  of  this  description  into  his  speech,  it 
is  usual  for  the  member  to  request  the  reading  of  what  he  so  desires 
to  make  a  part  of  his  speech,  by  the  clerk  or  other  proper  officer,  at 
the  table ;  and  herein,  the  rule  appears  to  be,  that  whenever  a  mem- 
ber, addressing  or  about  to  address  the  house,  desires  that  an 
extract  from  the  journals,  or  a  part  or  the  whole  of  any  document 
regularly  in  the  possession  of  the  house,  as,  for  example,  any  paper 
ordered  to  lie  on  the  table,  or  in  the  files  of  the  house,  or  under  con- 
sideration at  the  time,  may  be  read,  it  is  to  be  read  by  the  clerk,  as 
a  matter  of  course,  and  as  making  a  part  of  the  member's  speech.^ 
Where  any  matter  of  this  kind,  which  a  member  desires  to  intro- 
duce as  a  part  of  his  speech,  has  been  printed  by  order  of  the  house, 
for  the  use  of  the  members,  it  is  equally  competent  to  a  member  to 
••ead  it  himself,  as  to  have  it  read  at  the  table. 

1660.  Where  a  paper  or  document  of  the  kind  above  referred  to 
has  been  ordered  to  lie  on  the  table,  it  seems,  that  the  only  mode, 
in  which  a  member  can  regularly  avail  himself  of  the  contents  of  it, 
in  his  speech,  is  by  having  it  openly  read  at  the  table,  unless  it  has 
been  printed,  in  which  case  he  may  call  the  attention  of  members 
to  it,  by  reading  it  himself.  In  the  time  of  Mr.  Speaker  Onslow, 
Sir  Robert  Walpole  addressing  the  house  in  debate,  and  attempting 
to  take  into  his  hand  a  petition  which  had  been  ordered  to  lie  on  the 
table,  or  to  read  the  petition  as  it  was  lying  on  the  table,  and  being 
called  to  order,  the  speaker  gave  his  opinion  as  follows ;  "  It  is 
undoubtedly  required  by  the  orders  of  the  house,  when  petitions  are 
ordered  to  lie  on  the  table,  that  they  should  lie  upon  the  table,  and 
that  any  member,  who  is  desirous  of  any  further  satisfaction,  should 
move  that  they  be  read  by  the  clerk,  that  every  member  may  have  the 
same  opportunity  of  understanding  and  considering  them,  and  that 
no  one  may  be  excluded  from  information  by  the  curiosity  or  delays 
of  another."  ^ 

1  Grey,  IV.  106;  Same,  IX,  216.  '  Coram.  Deb.  XII.  495. 


CUAP.  VI.]  SOURCES   OF   STATEMENTS   IN   DEBATE.  641 


Section  III.     Matter  introduced  from  Extraneous  Sources. 

1661.  In  introducing  matter  of  this  description  into  his  speech, 
the  member  himself  reads  it  to  the  house  from  a  document,  either 
printed  r)r  written,  in  his  possession  at  the  time;  and,  it  seems,  that 
unless  the  paper,  if  proper  to  be  used,  is  so  far  before  the  house,  as 
to  be  then  in  the  possession  of  the  member  speaking,  he  cannot 
quote  ^  from  or  refer  to  it.^  This  subject  has  been  much  considered, 
at  different  times,  with  reference  to  printed  documents,  and  more 
especially  newspapers. 

1662.  According  to  the  strict  rule  of  parUamentary  practice,  as 
recognized  and  stated  by  Mr.  Speaker  Manners  Sutton,  February, 
1821,  and  which  seems  to  have  been  generally  enforced,  until  within 
a  few  years,  it  was  not  in  order  for  any  member,  in  the  course  of 
his  speech,  to  read  any  statement  from  a  printed  paper  without  the 
leave  of  the  house.^  By  the  terms  of  the  rule,  every  thing  printed, — 
books,  pamphlets,  reviews,  newspapers,  and  publications  of  every 
description,  —  were  embraced  within  it,  except  only  those  things 
which  had  been  ordered  by  the  house  to  be  printed.  Attempts  were 
frequently  made,  however,  notwithstanding  the  rule,  to  read  from 
books,  and  especially  from  newspapers,  in  debate,  and  sometimes 
with  success.  In  regard  to  newspapers,  reading  from  them  has 
been  generally  held  to  be  irregular,  because,  in  the  particular  case, 
it  would  infringe  upon  the  weU-established  rule,  that  no  allusion 
shall  be  made  to  a  previous  debate ;  Ijut  occasion  has  also  been 
taken,  at  the  same  time,  to  animadvert  upon  the  aggravation  of  the 
irregularity,  by  referring  to  a  previous  debate,  in  the  report  of  it 
published  in  a  newspaper.  Mr.  Speaker  Grenville,  in  1789,  after 
remarking,  that  "  nothing  could  be  much  more  disorderly  than  for 
any  member  to  allude  to  what  had  passed  in  debate  on  a  former 
day,"  added,  "  but  it  was  most  disorderly  to  make  what  appeared 
in  a  newspaper  the  subject  of  debate  in  that  house."  ^  Mr.  Speaker 
Addington,  in  1795,  adverting  to  the  irregularity  of  referring  to  a 
former  debate,  said  "  it  was  an  aggravated  irregularity  to  refer  to  a 
printed  account  in  a  newspaper."  ^  Mi-.  Speaker  Abbott,  in  1812, 
interrupting  a  member,  who  offered,  with  the  permission  of  the 
house,  to  read  an  extract  from  a  newspaper,  said,  "  it  was  rather  a 

1  Hans.  (3),  XLIV.  450.  *  Pari.  Reg.  XXV.  406,  407. 

«  Pari.  Reg.  LXV.  500.  »  Pari.  Reg.  XLIIL  '.27,  628. 

»  Hans.  (2),  IV.  922,  923. 

54* 


642  LEGISLATIVE   ASSEMBLIES.  [P.\ilT  VI. 

novel  thing  to  introduce  newspapers,  and  make  references  to  them."^ 
Lord  Chancellor  Eldon,  also,  in  the  same  year,  took  occasion  to 
remark,  that  "in  the  course  of  thirty  years'  parliamentary  expe- 
rience, he  had  never  witnessed  any  thing  so  monstrous  and  dis- 
orderly as  the  production  of  a  newspaper  in  that  house."  -  The 
reason  why  newspapers  were  thus  peculiarly  obnoxious  was,  that 
the  publication  of  the  debates  and  proceedings  was  a.  breach  of  the 
orders  of  the  house.  Reading  from  printed  books,  containing  ac- 
counts of  parliamentary  proceedings,  does  not  seem  to  have  been 
regarded  with  so  much  severity.  In  1794,  Mr.  Speaker  Addington 
allowed  the  debates  on  the  traitorous  correspondence  bill,  in  1722, 
to  be  read  fi-om  a  printed  volume,  "  drawing  the  distinction  between 
questioning  the  words  of  a  member  now  of  the  house,  whose  words 
might  thus  be  misrepresented,  and  reading  speeches  of  members 
long  since  dead."  ^  In  regard  to  reading  from  printed  documents 
or  books  matters  not  connected  with  parliamentary  proceedings, 
the  rule,  as  above  stated  by  Mr.  Speaker  Abbott,  does  not  appear 
to  have  been  rigidly  enforced ;  and,  on  that  occasion,  the  speaker, 
after  stating  the  rule,  added,  that  it  had  not  been  strictly  insisted 
upon,  and  the  member  proceeded  to  read  the  extract  to  which  he 
had  referred.^  In  1832,  a  member  addressing  the  house  for  the 
purpose  of  bringing  foi*ward  a  motion  on  the  subject  of  flogging  in 
the  army,  and  reading  at  considerable  length  from  a  pamphlet  on 
the  subject,  he  was  called  to  order  on  the  ground,  that,  though  he 
might  read  statements  of  facts,  yet,  when  he  proceeded  to  read  not 
facts  but  arguments,  he  was  exceeding  the  usual  limits  allowed  to 
members  in  quoting  from  published  works ;  and  Mr.  Speaker 
Manners  Suti  on,  said,  "  it  was  difficult  to  say,  precisely,  what  should 
be  the  limits  to  which  any  gentleman  might  proceed,  in  reading 
extracts  from  a  printed  document,  as  a  portion  of  his  speech ;  the 
matter  must  depend  upon  the  feelings  of  the  house,  and  the  dis- 
cretion of  the  member,  though  he  would  undoubtedly  govern  him- 
self according  to  what  he  perceived  to  be  the  sense  of  the  house  on 
the  subject."  ^ 

1663.  The  foregoing  extracts  show,  that  the  practice  of  parlia- 
ment, in  regard  to  reading  from  books  and  papers,  was  neither  in 
accordance  with  the  rule  as  admitted  in  theory,  nor  so  uniform  and 
consistent  with  itself,  as  to  become  the  foundation  of  a  new  rule  on 


1  Hans.  (1),  XXI.  191.  <  Hans.  (2),  IV.  922,  923. 

2  Hans.  (1),  XXII.  54,  55.  ^  Hans.  (3),  XUI.  884. 
8  Pari.  Reg.  XXXVHI.  279,  280. 


Chap.  VL]         sources  of  statements  in  debate.  643 

fhe  subject.  In  the  year  1840,  however,  a  proceeding  took  place  in 
the  house  of  commons,  which  has  had  the  effect  to  put  newspapers 
on  the  same  footing  with  all  olher  printed  books  and  documents, 
and  to  settle  the  practice  in  regard  to  reading  extracts  from  printed 
publications  generally.  A  member,  in  the  course  of  his  speech, 
proceeding  to  read  an  extract  from  a  newspaper,  which  he  had  cut 
out  for  the  purpose,^  he  was  interrupted  by  the  speaker,  Mr.  Shaw 
Lefevre,  who  laid  down  ihe  rule  of  the  house,  that  it  was  not  com- 
petent to  any  member  to  read  a  newspaper  in  the  house.  A  con- 
versaUon  thereupon  ensued  upon  the  rule  of  order  as  thus  laid 
down,  in  which  the  leading  members  of  all  parties  participated,  and 
in  which  they  concurred  in  opinion,  that  no  dis-inction  was  to  be 
made  between  newspapers,  on  the  one  hand,  and  pamphlets,  re- 
views, and  books,  on  the  other,  and  that  the  recent  practice,  as  to 
a  member's  making  an  extract,  whether  printed  or  written,  from 
any  printed  publication,  a  part  of  his  speech,  had  been  to  leave  the 
matter  to  his  own  discretion.-  In  consequence  of  the  opinions  thus 
expressed,  Mr.  Speaker  made  no  further  objection,  and  the  member 
proceeded  to  read  without  interruption  the  extract  to  which  he  had 
referred. 

1664.  It  may  now,  therefore,  be  considered  as  the  recognized 
practice  of  parliament,  at  least,  in  the  house  of  commons,  to  allow 
a  member  in  the  course  of  his  speech  to  read  such  passages  or  ex- 
tracts, whether  printed  or  written,  from  printed  papers  of  every  de- 
scription, as  well  as  from  books,  pamphlets,  reviews,  or  newspapers, 
as  he  may  think  proper  to  introduce,  provided  such  extracts  are 
otiierwise  unobjectionable ;  and,  it  is  presumed,  there  is  no  longer 
any  distinction,  in  this  respect,  between  private  letters  or  other  docu- 
ments in  manuscript  and  printed  papers.  To  the  rule,  as  thus 
broadly  expressed,  there  are  certain  exceptions,  which  arc  now  to 
be  stated. 

1665.  I.  It  is  not  in  order  for  a  member  to  read  the  contends  of 
any  paper,  which  in  its  nature  is  not  receivable  by  the  house ;  ihus, 
where  a  member,  in  debate  on  a  bill  for  raising  a  revenue,  having 
slated,  that  he  had  received  a  petition  from  some  of  his  constituents, 
t<)  present  to  the  house  against  certain  of  tlie  provisions  of  the  bill ; 
that  he  was  aware  that  he  could  not  present  any  petition  against 


•  This  seems  to  huve  been  done,  in  order  to     fore  held,  "  th;it  there  was  no  difference  be 
avoid  the  ap])earance  of  readin;;  from  n  news-      twecn  n  slip  and  a  newspaper.'' 
paper;  bnt  t!ii>  speaker  said,  as  had  been  be-         ^  Huns.  (3),  Lll.  10C3    10*4,  1065. 


644  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

a  tax  bill,^  and,  therefore,  that  he  would  read  the  petition  as  a  part 
of  his  speech ;  the  speaker,  Mr.  Abbott,  "  submitted  to  the  judg- 
ment of  the  member,  whether  it  would  be  competent  to  any  mem- 
ber, according  to  established  usage,  to  read  a  petition,  which  he  was 
not  permitted  to  present.  Such  a  proceeding  did  not  appear  as  at 
all  consonant  to  the  substance  of  the  order,  which  precluded  the 
admission  of  such  a  petition."  The  member,  thereupon,  merely- 
stated  the  circumstances  of  the  petitioners ;  ^  which  it  was  compe- 
tent for  him  to  state  in  the  debate,-^  although  the  petitioners  them- 
selves could  not  be  permitted  to  bring  them  to  the  knowledge  of  the 
house  by  a  petition.  How  far  it  might  be  competent  for  a  member 
to  state  the  substance  of  a  paper,  which,  by  the  rule,  he  could  not 
read  to  the  house,  would  depend  upon  the  nature  of  each  particular 
case.  If  the  paper  was  objectionable,  on  account  of  its  form  merely, 
the  contents  might  undoubtedly  be  stated ;  if,  on  account  of  the 
nature  of  the  contents,  then  neither  the  substance  nor  the  language 
ought  to  be  received. 

1666.  II.  Where  the  question  pending,  and  in  reference  to  which 
the  paper  is  proposed  to  be  read,  is  the  production  of  the  paper 
itself,  it  cannot  be  read :  thus,  where  a  member  rose  to  move  for 
the  production  of  a  paper,  and,  to  sustain  his  motion,  was  proceed- 
ing to  read  certain  passages  from  the  paper  itself,  the  speaker, 
Mr.  Abbott,  informed  him,  "  that  it  was  not  regular  to  read  to  the 
house  that  which  he  was  asking  the  house  to  order  to  be  produced. 
It  was  the  same  as  with  a  petition  of  which  a  member  mi^ht  state 
generally  what  was  the  scope  and  nature,  but  it  was  not  allowed  to 
be  read,  even  at  the  table,  until  the  permission  of  the  house  was 
received."  ^  In  this  case,  it  would  undoubtedly  be  competent  for 
the  member  to  state  the  substance  of  the  paper. 

1667.  HI.  Where  the  paper,  proposed  to  be  read,  is  one  which 
the  house  has  refused  to  order  the  production  of  during  the  then 
present  session,  it  cannot  be  read :  thus  where  a  member,  in  debate, 
read  from  a  printed  despatch  of  the  East  India  Company  which 
had  been  published,  the  opinion  of  the  directors,  on  a  particular 
subject,  and  was  called  to  order,  on  the  ground,  that  it  was  irregu- 
lar to  refer  to  opinions  which  were  not  before  the  house,  the 
speaker,  Mr.  Abbott,  decided,  "  that  if  this  parliament  had  refused 
[to  order]  the  document,  which  the  member  was  quoting,  it  would 


»  This  restriction  on  the  right  of  petition  is         »  p^,-].  Reg.  (2),  X.  116,  117. 
BOW  removed.     Comm.  Jour.  XCVII.  191.  *  Hans.  (1),  XII.  1043. 

»  Hans.  (1),  II.  1060. 


CriAP.    VII.]  ORDER   AMONG   THE   MEMBERS.  645 

never  consent  to  receive  ihat  indirectly,  which  it  hud  directly 
refused.  But,  if  the  paper  had  not  been  refused  by  this  parliament, 
he  was  of  opinion,  that  the  memljer  was  perfectly  in  order,  when 
he  made  use  of  it  in  the  course  of  his  argument."  ^ 

1668.  IV.  Letters  and  other  communications,  whether  vrntten  or 
printed,  emanating  from  persons  out  of  the  house,  and  referring  to, 
commenting  on,  or  denying,  any  thing  said  by  a  member,  or  express- 
ing any  opinion  as  to  any  proceeding,  within  the  house,  cannot  be 
read  by  a  member  in  debate.  The  only  occasion,  upon  which  any 
such  communications  could  be  brought  before  the  house  would  be 
in  moving  for  a  committee  on  the  subject,  or  in  examinations 
before  such  a  committee.- 

1669.  V.  Where  the  language  of  the  document  is  such  as  would 
be  disorderly  and  unparliamentary,  if  spoken  in  debate,  it  cannot 
be  read.  Thus,  where  a  member  was  proceeding  to  read  quota- 
tions from  a  written  or  printed  document,  couched  in  language 
which  was  unfit  for  publication,  and  which  seemed  to  excite  a  very 
general  feeling  of  disgust  in  the  house,  and  was  called  to  order, 
the  speaker  said,  "  that  though  the  member  was  only  stating  facts," 
(he  had  justified  himself  on  that  ground,)  "  it  was  always  necessary 
to  use  parliamentary  language.  No  language  could  be  orderly  in 
a  quotation,  which  would  be  disorderly  if  spoken.  The  passage 
read  was  certainly  of  that  nature,  and  therefore  he  must  request 
the  member  not  to  read  any  more  of  the  ofTensive  passages."  ^ 


CHAPTER     SEVENTH. 

OF   THE  RULES  RELATING  TO   THE   PRESERVATION  OF   ORDER, 
DECENCY,   AND    HARMONY,  AMONG   THE  MEMBERS. 

1670.  The  rules,  embraced  in  this  branch  of  order  in  debate, 
relate,  I.  To  the  manner  in  which  the  individual  members  are  to 
be  designated ;    II.  To    then-    exemption   from    bemg   personally 

1  Hans.  (1),  X.  700.  »  Hans.  (3),  XVL  217. 

2  Hans.    (.3),   LXI.   141;    Same,   661,   662; 
Bam.-,  LXIV.  261. 


C46  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

addressed  or  appealed  to ;  and,  III.  To  their  exemption  from  being 
personally  remai'ked  upon,  or,  in  other  words,  to  personality  in 
debate. 


Section  I.     As    to    the    Manner   in   which   the   Individual 
Members  are  to  be  designated. 

1671.  In  order  to  guard  as  much  as  possible  against  the  excite- 
ment of  all  personal  feeling,  either  of  favor  or  of  hostility,  by  sepa- 
rating, as  it  were,  the  official  from  the  personal  character  of  each 
member,  and  having  regard  to  the  former  only  in  the  debate,  it  is 
an  established  rule,  that  no  member  is  to  refer  to  another  in  debate 
by  his  name,  but  to  describe  him  by  his  seat,  or  as  the  member  who 
spoke  last,  or  last  but  one,  or  on  the  other  side  of  the  question,  or 
by  some  other  equivalent  expression.  In  the  house  of  peers,  every 
lord  is  alluded  to  by  the  rank  he  enjoys ;  as  "  the  noble  marquis," 
or  "  the  rio-ht  reverend  prelate  ; "  and,  in  the  commons,  each  mem- 
ber is  distinguished  by  the  office  he  holds,  by  the  place  he  repre- 
sents, or  by  other  designations ;  as  "  the  noble  lord  the  secretary 
for  the  colonies,"  the  "  honorable  or  right  honorable  gentleman  the 
member  for  York,"  or  the  "  honorable  and  learned  member  who 
has  just  sat  down."  A  member,  who  belongs  to  the  profession  of 
the  law,  is  designated  as  "honorable  and  learned;"  one  who 
belongs  to  the  naval  or  military  service,  as  "  honorable  and  gal- 
lant." 

1672.  The  terms  made  use  of  for  this  purpose,  though  estab- 
lished by  practice,  are  not  the  only  ones  that  may  be  employed ; 
and,  of  course,  other  equivalent  terms  may  be  resorted  to,  provided 
they  are  respectful ;  but,  if  ironical,  as  where  a  member  was 
designated  as  "  honorable  and  relig-ioifs"  ^  they  will  be  disorderly. 
The  rule  is  confined  to  members  only,  and  does  not  include  peti- 
tioning candidates.^ 

1673.  But  though  it  is  irregular  to  mention  a  member  by  his 
name,  it  does  not  seem  to  be  so,  to  refer  to  him  by  the  name  of  his 
family,  or  that  of  his  ancestors,  in  the  way  of  historical  allusion  ; 
thus,  when  Sir  James  Mackintosh,  in  debate,  alluded  to  "  a  right 
honorable  gentleman  who  bears  the  name  of  York,  and  in  whose 
veins  the  blood  of  Somers  flows,"  and  Mr.  Charles  Yorke  rose  to 
order,  Mr.   Speaker  Abbott  observed,    "that  he    understood   the 

1  Hans.  (1),  XXXVI.  1291,  2  Hans.  (1),  VIII.  90. 


Chap.  VII.]  ohder  among  the  members.  647 

honorable  and  learned  gentleman  to  speak  historically,  not  with  an 
intention  to  name  any  member."  ^ 


Section  II.  As  to  the  Exemption  of  Members  from  being 
personally  addressed  or  appealed  to,  in  debate,  by  other 
Members. 

1674.  Freedom  of  debate  implying  not  only  liberty  to  state  what 
a  member  thinks  proper  for  the  information  of  the  hou?e,  but  also 
to  take  his  own  time  for  doing  so,  and  to  refrain  from  making  any 
statement  at  all,  miless  he  thinks  proper;  it  is  held  to  be  an 
infringement  of  ihis  freedom,  for  one  member  to  put  questions  or  to 
make  personal  appeals  to  another,  in  the  course  of  debate.-  Such 
appeals  are,  however,  sometimes  made,  and,  if  the  irregularity  is 
waived  on  the  part  of  the  house,  and  the  member  interrogated  sees 
fit  to  answer,  he  is  at  liberty  to  do  so  ;  but  if  he  declines  or  refuses, 
—  standing  on  his  rights  as  a  member,  —  it  is  not  in  order  to  argue 
or  predicate  any  statement  upon  such  refusal.'^ 

1675.  The  following  are  examples  of  the  irregularity  alluded 
to,  namely :  where  a  member,  in  debate,  called  upon  another  who 
had  previously  spoken  to  explain  some  part  of  his  speech ;  '^  where 
a  member,  having  first  stated  that  another  member,  in  the 
course  of  a  speech,  had  called  a  certain  periodical  publication, 
seditious  trash,  and  had  since  written  to  the  editors  praising  and 
encouraging  the  publication,  then  asked  the  member,  whether  he 
denied  that  he  had  done  so  ; '"  where  a  member,  having  first  called 
the  attention  of  another  member  to  certain  observations  of  the  lat- 
ter respecting  him,  in  a  former  debate,  called  upon  the  member 
either  to  retract  the  charge  contained  in  those  observations,  or  to 
state  the  grounds  on  which  he  made  it ;  ^  where  a  member,  in  the 
course  of  his  speech,  having  made  some  remarks  upon  the  duke  of 
Wellington,  another  member  rose,  as  he  said,  to   order,  and  de- 

1  H:\ns.  (1),  XXXII.   9S3.     It  has  been  de-  another,  except  in  a  committee   of  inquiry, 

oided  in  the  house  of  representatives  of  the  Hans.  (1),  XII.  297.     See  also  Cong.  Globe, 

United  States,  that  it  is  not  disorderly  for  a  V.  26. 

member  in  debate  to  read  the  names  of  pres-  "  Cav.  Deb.  II.  239;    Same,  241;  Pari.  Reg. 

ent  members  of  the  house,  from  the  printed  XL  16;  Hans.   (3),  V.  200;    Same.  XII.  918; 

journal  of  a  foi-mer  house.    Reg.  of  Deb.  XIL  Same,  XXX  VIL   1318;     Same,   LXIH.   424; 

Part  2,  2281, 2284.     See  also  Cong.  Globe,  XI.  Same,  (2),  XXI.  742. 

65.  ■•  Pari.  Reg.  XI.  16. 

a  lilr.  Speaker  Abbott  observed,  that  it  had  »  Hans.  (3),  V.  200. 

been  determined  in  more  instances  than  one,  •  Hans.  (2),  XII.  1314,  1315. 
that  no  member   had    a    right    to    examine 


648 


LEGISLATIVE   ASSEMBLIES. 


[Part  VI. 


manded,  whether  the  member  meant  to  say,  that  the,  etc. ;  ^  where 
a  member,  having  first  read  from  a  newspaper  a  report  of  the  re- 
marks made  by  another  member,  called  upon  that  member  to  say, 
whether  he  denied,  or  adopted  the  publication  ;2  where  a  member 
expressed  a  hope,  that  a  certain  member,  whom  he  saw  in  his 
place,  would  be  present  at  a  particular  discussion,  in  order  that  he 
might  become  sensible  of  the  scandalous  manner  in  which  he  had 
misrepresented  the  opinions  and  the  objects  of  the  emigration  com- 
mittee.^ 


Section  III.     As  to   the   Exemption   of   Members   from  being 

PERSONALLY     REMARKED    UPON,   OR,   IN    OTHER   WORDS,   AS   TO    PER- 
SONALITY IN  Debate. 

1676.  It  is  a  rule,  as  we  have  already  seen,  that  every  member, 
in  speaking,  is  to  confine  himself  to  the  question;  it  is  conse- 
quently disorderly  to  speak  to  any  other  topic ;  it  is  doubly  so  to 
digress  from  the  question,  for  the  purpose  of  attacking  the  person 
of  another  member ;  for,  besides  the  waste  of  time,  resulting  from 
such  a  digression,  a  personal  attack  upon  a  member  cannot  but 
tend  to  a  disturbance  of  the  harmony,  order,  and  decorum,  which 
ought  to  prevail  in  a  deliberative  assembly.  "  The  regard  due  to 
the  dignity  of  the  house,"  says  Mr.  Speaker  Onslow,  "  ought  to  re- 
strain every  member  from  digressing  into  private  satire ;  for,  in 
proportion  as  we  proceed  with  less  decency,  our  determinations 
will  have  less  influence."  ^  "  The  freedom  of  debate,"  says  Mr. 
Speaker  Abercrombie,  "  can  never  be  better  secured  than  by  hon- 
orable members'  conducting  it  with  temper."  ^  "  Personal  alterca- 
tions," says  the  earl  of  Sandwich,  "  always  impede  public  business, 
—  answer  no  one  substantial  or  beneficial  purpose  whatever,  —  and 
are  only  productive  of  ill  humor."  ^  "  Hence,"  says  Mr.  Speaker 
Addington,  "  there  is  no  rule  better  established  in  the  house,  than 
that  qui  dig-reditur  a  materia  ad  personam  is  disorderly,  that  what- 
ever wanders  from  the  subject  in  debate,  and  is  converted  into  a 
personal  attack,  is  contrary  to  order."  "> 

1677.  The  rule,  therefore,  relating  to  personal  reflections  occurring 
in  debate,  may  be  stated  thus,  namely :  that  it  is  doubly  disorderly 


1  Hans.  (3),  XH.  918. 

2  Hans.  (3),  XXXVH.  1318. 
«  Hans.  (2),  XXL  742. 

*  Coram.  Deb:  XIL  299. 


5  Hans.  (3),  XX\an.  15. 
•Pari.  Reg.  IV.  (L.),  144. 
J  Pari.  Reg.  XXXVIII.  367. 


Ceap.  VIL]  order  amono  the  members.  649 

for  any  member,  in  speaking,  to  digress  from  the  question  before 
the  house,  and  to  attack  any  other  member,  by  means  of  opprobri- 
ous language,  applied  to  his  person  and  character,  or  to  his  conduct, 
either  in  general,  or  on  some  particular  occasion,  and  tending  to 
bring  him  into  ridicule,  contempt,  or*  hatred,  with  his  fellow-mem- 
bers, or  to  create  ill  blood  in  the  house.' 

1678  Personality  in  debate  is  thus  an  offence  both  against  the 
individual  member  attacked,  and  against  the  house  itself,  which 
subjects  the  offender  to  anhnad version  and  censure  at  the  pleasure 
of  the  house  ;  unless,  upon  proper  apology,  explanation,  or  retrac- 
tion, the  house  is  satislied ;  and  though  the  house  will  always  have 
regard  to  the  feelings  of  the  member  attacked,  it  is  not  competent 
for  him  to  waive  the  irregularity:  thus,  a  member  having  made 
some  strong  personal  allusions  to  Mr.  Pitt,  and  being  called  to 
order  by  Mr.  Speaker  Addington,  Mr.  Pitt  said  "  he  was  willing 
to  waive  the  point  of  order'  so  far  as  he  was  personally  concerned, 
for  nothing  the  honorable  gentleman  could  say  could  possibly 
offend  him ; "  but  the  speaker  said,  "  it  could  not  be  supposed  that 
he  had  interrupted  the  honorable  member  on  any  idea  of  what 
might  be  the  personal  feelings  of  any  gentleman,  but  because  he 
thought  he  was  going  beyond  the  established  rules  of  debate."  ''- 

1679.  The  whole  law  of  parliament  on  this  subject  is  admnably 
summed  up  and  expressed  in  the  following  standing  order  of  the 
lords  :  "  To  prevent  misunderstanding,  and  for  avoiding  of  offensive 
speeches,  when  matters  are  debating,  either  in  the  house,  or  at 
committees,  it  is  for  honor's  sake  thought  fit,  and  so  ordered,  that 
all  personal,  sharp,  or  taxing  speeches  be  forborne ;  and  whoever 
answereth  another  man's  speech  shall  apply  his  answer  to  the  mat- 
ter without  wrong  to  the  person ;  and  as  nothing  offensive  is  to  be 
spoken,  so  nothing  is  to  be  ill  taken,  if  the  party  that  speaks  it 
shall  presently  make  a  fair  exposition,  or  clear  denial,  of  the  words 
that  might  bear  any  ill  consti-uction ;  and  if  any  offence  be  given  in 
that  kind,  as  the  house  itself  will  be  very  sensible  thereof,  so  it  will 
sharply  censure  the  offender,  and  give  the  party  offended  a  fit 
reparation,  and  full  satisfaction."  "^ 

1680.  "  It  is  impossible,"  says  Mr.  Hatsell,  "  to  lay  down  any 

1  See,  also,  concerning  tlie  subject  of  this  Same,  X.  Part  2,  27,  28;   Same,  Part  3,  3760, 

section,    J.   of  H.  IV.  64;    Same',   VII.    188;  3765;   Same,  XII.  Part   2,   2317,  2318,  2539, 

J.  of  S.  fi3d  Cong.  2d  Sess.  161 ;  J.  of  H.  24th  2540,  2541 ;    Same,   VII.   475 ;    Same,    VIII. 

Cong.  1st  Sess.  360;  Ann.  of  Cong.  8th  Cong.  Part  1,  660;  Same,  Part  2,  2340,  254S;  Cong. 

2d  Sess.  1115;  Reg.  of  Deb.  III.  1046;  Same,  Globe,  XIII.  570;  Same,  XV.  523. 

IV.   Part   1,  1192,  1193;  Same,  1456;  Same,  -  Pari.  Peg.  XXXVIII.  290. 

VUI.  Part  3,  3876;  Same,  IX.   Part  2,  1920;  '  Hans.  ^3),  XIX.  357. 


650 


LEGISLATIVE   ASSEMBLIES. 


[Part  VL 


specific  rules,  in  regard  to  injurious  reflections  uttered  in  debate 
against  particular  members,  or  to  declare  beforehand  what  ex- 
pressions are  or  are  not  contrary  to  order;  much  depends  upon 
the  tone  and  manner,  and  intention,  of  the  person  speaking ;  some- 
1hing  upon  the  person  to  whom  the  words  are  addressed,  as, 
whether  he  is  a  public  ofiicer,  or  a  private  member  not  in  office,  or 
whether  the  words  are  meant  to  be  applied  to  his  public  conduct, 
or  to  his  private  character ;  and  something  upon  the  degree  of 
provocation,  which  the  member  speaking  had  received  from  the 
person  he  alludes  to  ;  and  all  these  considerations  must  be  attended 
to  at  the  moment,  as  they  are  infinitely  various  and  cannot  pos- 
sibly be  foreseen  in  such  a  manner,  that  precise  rules  can  be 
adopted  with  respect  to  them." 

1681.  Some  idea,  however,  perhaps  an  adequate  one,  of  the 
law  and  practice  of  parliament  with  relation  to  personal  attacks, 
may  be  obtained,  by  considering  them  as  divided  into  the  two 
classes  of  offensive  remarks  concerning  the  character  or  acts  of  a 
member,  and  remarks  imputing  improper  motives  to  him  for  his 
parfiamentary  conduct,  and  by  giving  some  examples  of  each  by 
way  of  illustration. 

1682.  The  following  are  instances  of  offensive  expressions,  at- 
tacking the  person  or  conduct  of  a  member,  which  have  been  con- 
sidered disorderly,  namely :  one  member  saying  of  another  that  he 
could  expect  no  candor  from  him  ;  ^  speaking  of  a  member's  affect- 
ing to  deplore  the  distresses  of  the  country  ;  ^  saying  that  the  ob- 
servations of  a  member  in  the  house  were  insulting  to  his  constit- 
uents, to  the  house,  and  to  the  country  ;  ^  speaking  of  a  member's 
habit  of  uttering  libels  in  the  house  ;  ^  saying  that  a  certain  member 
had  called  another  an  impertinent  fellow;^  charging  a  member  with 
being  guilty  of  gross  misrepresentations,''  or  with  having  acted  basely 
or  from  base  motives ;  ">  saying  of  a  member,  that  when  allusion 
was  made  to  certain  unhappy  transactions,  he  was  observed  indulg- 
ing in  a  smile  unworthy  of  a  man ;  '^  saying  that  the  house  had  a 
right  to  know  whether  a  member  meant  what  he  said,  or  knew 
what  he  meant ;  ^  reiterating  a  statement  as  made  by  a  member, 
which  the  member  has  already  explained  or  denied  ;  ^'^  making  allu- 
sion to  steps  to  be  taken  elsewhere  to  call  in  question  a  statement 


1  Hans.  (1),  XXXm.  505. 

2Hang.  (2),  IV.  243. 

3  Hans.  (.3),  III.  1162,  1153. 

<  Hans.  (3),  UI.  1194. 

6  Hans.  (3),  XXVIH.  502. 


8  Hans.  (2),  VHL  410. 
1  Hans.  (3),  XXVIL  120. 
8  Hans.  (3),  IV.  561. 
»  Hans.  (2),  IV.  240. 
10  Hans.  (1),  II.  315;  Same,  (3),  LXL  58. 


Chap.  VIL]  order  among  the  members.  651 

made  by  a  member  in  the  house ;  ^  saying  there  was  some  d<'gree 
of  novelty  in  a  member's  mode  of  attack  against  a  report  origi- 
nating from  thLrty-onc  members,  to  whose  character  for  honor  and 
integrity,  he  would  not  do  any  injury  by  comparing  it  with  the 
quarter  from  which  the  attack  was  made.- 

1683.  There  are  some  epithets,  w  hich  are  considered  as  convey- 
ing a  personal  charge,  and  as  being  disorderly,  or  otherwise,  accord- 
ing to  the  sense  in  which  they  are  used,  of  which  the  following  are 
examples :  where  a  member,  in  debate,  declared  the  statement  of 
another  to  be  false ^  and  was  called  to  order,  his  explanation,  that 
he  used  the  word  in  its  parliamentary  sense,  and  not  offensively  as 
to  the  veracity  of  the  member,  whose  statement  he  thus  impugned, 
was  admitted  as  satisfactory;'^  where  a  member,  in  debate,  made 
use  of  the  word  indecent,  and  was  called  to  order,  the  speaker,  ]VIr. 
Abbott,  observed,  that,  "  if  he  had  understood  the  phrase  used  to 
be  applied  personally,  he  should  have  thought  it  highly  disorderly ; 
but  as  simply  descriptive  of  any  proposition  that  might  be  sub- 
mitted to  the  house,  it  did  not  appear  to  him  to  offend  against  the 
laws  of  parliamentary  debate ; "  ^  where  a  member  said  he  protested 
against  the  tone  and  language,  which  another  had  dared ^  to  use, 
and  was  called  to  order  on  the  ground,  that  it  was  not  in  order  to 
apply  the  word  dare  to  any  remark  made  by  a  member,  the  speaker, 
Mr.  Manners  Suttx)n,  said,  "  that,  undoubtedly,  if  the  word  dare 
were  to  be  interpreted  in  the  sense  in  which  the  member  objecting 
took  it,  it  would  be  quite  disorderly ;  but  the  house  would  allow 
him  to  say,  that  the  term  was  one,  which  was  frequently  used  in 
debate,  without  any  offensive  intention  on  the  part  of  the  member 
using  it."  •" 

1684.  The  following  are  examples  of  offensive  remarks,  imputing 
improper  motives  to  members  for  their  parliamentary  conduct:  — 
a  member  saying  that  he  could  not  conceive  of  another  member's 
opposing  the  measure  before  the  house,  upon  any  principle,  but 
that  of  obstructing  the  defence  of  the  country ;  ^  questioning  the 
sincerity  of  a  member's  professions  as  to  the  grounds  upon  which  he 
acted ; '-'  saying  that  what  another  member  had  said  in  debate  nmst 


>  Ilims.  (3),  TJX.  1006.  659.     See  also  J.  of  S.  2.3d  Cong.  2d  Sess.  IClj 

«  Farl.  Reg.  XXXVIII.  367;  Same,  (2),  XV.  J.  of  H.  3Uth  Cong.  1st  Sess.  348. 

B7.  6  Hans.  (1),  XXII.  1012. 

*  See  also  Reg.  of  Deb.   XII.  Part  2,  2539,  «  See  also  Reg.  of  Deb.  X.  Part  2,  2728. 
8540,  2541.  '  Hans.  (2),  VII.  1394. 

♦  Hans.  (1),  XXII.  1012;  Same,  (3),  VI.  656,  s  Pail.  Reg.  LI.  231,  232. 

»  Pari.  Reg.  XXVII.  527,  528. 


652  LEGISLATIVE   ASSEMBLIES.  [PaRT    VJL 

be  considered  not  so  much  addressed  to  parliament  as  to  certain 
persons  in  another  place  ;  ^  imputing  to  members,  that  they  enter- 
tained views  contrary  to  the  just  discharge  of  their  public  duties,  as 
where  a  member  said,  that  he  trusted  his  amendment  would  meet 
with  the  support  of  those  who  came  there  to  benefit  the  country,  — 
he  did  not  hope  for  much  from  those  who  came  there  to  benefit 
themselves.^ 

1685.    In  considering,  however,  and  determining  upon,  the  charac- 
ter of  words  of  this  description,  a  distinction  must  be  attended  to, 
between  the  effect  or  operation  of  a  measure,  and  the  intention  of 
a  member  in  opposing  or  advocating  it.     Thus,  where  a  member 
was  called  to  order  for  saying,  "  that  no  person  could  agree  with  the 
measure  pending,  without  being  alike  an  enemy  to  the  monarch 
and  the  monarchy  itself,"  the  speaker,   ]Mi-.   Manners    Sutton,  in 
giving  his  opinion,  "  drew    a  distinction  between  an  effect  pro- 
spectively imputed  to  be  the  result  of  a  motion,  by  way  of  argu- 
ment, and  a  motion  ascribed  to  an  individual  as  intending  to  pro- 
duce that  result ;  the  latter  would  be  highly  disorderly,  the  former, 
in  his  opinion,  not  so;"^  and,  on  another  occasion,  where  a  ques- 
tion was  made,  as  to  whether  it  was  disorderly  to  say,  that  "  the 
opposition,  in  despair  of  being  able  to  get  into  office,  are  determined 
to  break  down  the  means  of  administering  the  affairs  of  the  coun- 
try," the  speaker,  Mr.  Manners  Sutton,  said,  in  the  first  place,  "  that 
to  impute  a  despair  of  obtaining  office  to  anybody  was  an  imputa- 
tion which  did  not  come  wdthin  the  prohibition  of  the  orders  of  the 
house,  but,  the  remainder  of  the  phrase,  if  uttered  there,  would  be 
strictly  unparfiamentary,  and  most  disorderly.     To  impute  an  un- 
worthy, much  less  an  unconstitutional  motive  to  any  honorable 
member,  in  the  exercise  of  his  pubfic  duty,  was  certainly  unparfia- 
mentary.    But  then,  again,  if  the  imputation  were  levelled  only  at 
the  tendency  of  measures,  and  not  at  the  intentions  of  the  individ- 
uals who  had  originated  them,  the  case  would  be  different."  ^ 

1686.  The  utmost  freedom  of  debate  being  necessary  and  there- 
fore aUowable  as  to  pubfic  measures,  and,  of  course,  with  relation 
to  the  conduct  of  ministers  and  other  official  persons,'^  a  distinction 
has  been  made  between  remarks  applied  to  the  official  character 
and  conduct  of  members  in  office,  and  remarks  applied  to  members 
in  their  individual  character ;    the  latter  only  being  considered  dis- 


1  Hans.  (1),  XXXV.  723.  *  Hiui.^.  (2),  VI.  1174,  1176. 

2  Hans.  (2),  VL  69,  70.  "  Hatsell,  HI.  74. 
«  Hans.  (2),  IV.  200. 


Chap.  VIL]  order  among  the  members.  653 

orderly.  According  to  Mr.  Speaker  Cornwall,  when  gentlemen's 
public  conduct  is  to  be  adverted  to  in  debate,  the  rule  is,  "  to  mix 
the  measure  with  the  man,  and  thus  form  a  fair  and  tenable  ground 
for  animadversion;  but  to  take  the  character  of  a  member  in  the 
abstract,  and  make  that  the  integral  subject  of  discussion,  was 
extremely  irregular,  and  in  the  highest  degree  disorderly."  ^  In 
accordance  with  the  rule,  as  thus  stated,  Mr.  Speaker  Addington 
held  it  disorderly  to  say,  in  reference  to  the  traitorous  correspond-  . 
ence  bill,  "  that  these  conspiracies  had  no  existence  but  in  the  foul 
imaginations  of  ministers ; "  ^  so,  where  a  member,  being  called  to 
order,  for  questioning  the  sincerity  of  a  member's  professions,  justi- 
fied his  remarks  on  the  ground,  that  when  he  talked  of  a  member's 
sincerity  as  a  public  man,  holding  a  public  argument,  and  did  not 
advert  to  any  part  of  his  private  character,  he  conceived  he  was 
strictly  in  order,  Mr.  Speaker  Addington  answered,  "  that  to  ques- 
tion in  that  manner  went  to  a  question  of  the  motives  on  which 
the  member  acted,  and  nothing  could  be  more  unparliament- 
ary." ^ 

1687.  It  is  scarcely  necessary  to  observe,  in  reference  to  offensive 
expressions  and  disorderly  remarks,  that  when  the  meaning  is  plain, 
it  is  wholly  immaterial  what  form  of  words  may  be  used,  or  how- 
ever mysterious  and  disguised  the  language  may  be ;  thus,  where  a 
member,  after  expressing  himself  in  terms  of  severity  of  another, 
added,  "  that  when  he  spoke  of  that  member's  conduct,  or  adverted 
to  his  sentiments,  he  would  state  nothing  which  he  would  not 
justify  on  every  occasion,  and  in  every  place,"  the  speaker,  Mr. 
Manners  Sutton,  said,  that  "  however  mysterious  the  language  was, 
he  could  know  what  meaning  it  was  intended  to  convey,  and  he 
was  sure  that  the  house  would  see  the  propriety  of  his  interfering, 
as  the  words,  in  his  opinion,  conveyed  a  meaning,  which  would  tend 
to  invade  the  order  of  the  house."  ^ 

1688.  Words,  which  are  plain  and  intelligible,  and  convey  a 
direct  meaning,  are  sometimes  used  hypothetically  or  conditionally, 
upon  the  idea,  that,  in  that  form,  they  are  not  disorderly.  But  this 
is  a  mistake.  If,  notA\ath3tanding  then:  being  put  hypothetically  or 
conditionally,  they  are  plainly  intended  to  convey  a  direct  imputa- 
tion, the  rule  is  not  to  be  evaded  by  the  form  in  which  they  are 
expressed.  Thus,  where  a  member,  being  called  to  order  for  per- 
sonal remarks,  justified  himself  by  saying  that  he  was  wholly  misun- 

1  Pnrl.  Reg.  XXIH.  395.  '  Pari.  Reg.  XXVII.  527,  528. 

a  Pari.  Reg.  XXX\1II.  367.  *  Hans.  (2),  VI.  618. 

55* 


654  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI 

derstood,  he  had  put  the  case  hypothetically,  the  speaker,  Mr. 
Manners  Sutton,  said,  "the  honorable  member  must  be  aware,  that 
putting  a  hypothetical  case  was  not  the  way  to  evade  what  would 
be  in  itself  disorderly."  ^ 

1689.  In  regard  to  words  conditionally  or  hypothetically  applied, 
where  that  form  is  not  adopted  for  the  mere  purpose  of  evading  the 
orders  of  the  house,  the  rule  is  laid  down  in  the  following  terms  by 
Mr.  Speaker  Abercrombie :  "  I  always  understood  that  terms  only 
conditionally  applied  were  not  such  as  called  for  the  interposition 
of  the  chair;  thus,  I  recollect  one  of  the  oldest  members  of  this 
house  using  this  phrase  without  reproof :  '  I  state  in  answer  to  the 
honorable  gentleman  in  the  strongest  terms  that  can  be  hypotheti- 
cally put,  that  what  he  has  said  is  false.'  When  a  hypothetical 
form  is  once  adopted,  the  chair  is  not  required  by  his  office  to  inter- 
fere. I  shall  never  hesitate,  however,  when  called  upon,  to  express 
the  sh-ongest  opinion,  that  the  use  of  such  language  is  extremely 
inconvenient,  and  inconsistent  with  the  freedom  as  well  as  with  the 
decorum  of  debate."  - 

1690.  A  personal  attack,  by  one  member  upon  another,  in  * 
debate,  is  an  offence  against  the  house,  in  the  person  of  one  of  its 
members ;  which,  on  account  of  the  respect  due  from  every  mem- 
ber to  the  character  and  dignity  of  the  house,^  as  well  as  the 
importance  of  preserving  regularity  in  the  debates,^  calls  for  the 
prompt  interference  of  the  speaker ;  ^  in  order  that  any  irregularity, 
into  which  a  member  may  have  been  betrayed  in  the  warmth  of 
debate,  may  be  rectified,  and  that  any  expressions,  which  may  be 
disrespectful  to  the  house,  or  painful  to  the  feelings  of  individual 
members,  may  be  explained,  apologized  for,  or  retracted.'^ 

1691.  The  proper  time  for  interference  is  when  the  offensive 
expressions  are  uttered,  and  not  afterwards;^  and  it  may  take  place, 
either  on  the  speaker's  voluntary  motion,^  or  on  the  caU  to  order  of 
the  member  assailed,^  or  of  some  other  member,^*^  or  the  general  call 
of  the  house  .1^ 

1  Hans.  (3),  VHI.  722,  723.  ^  Pari.  Reg.  XXV.  371;  Same,  XXVI.  26. 

2  Huns.  (3),  XXVIir.  15.  See  also  Reg.  of  »  Par].  Reg.  XXXVIII.  290;  Hans.  (2),XXI. 
Deb.  VIII.  Part  3,  3882,  3883;  Cong.  Globe,  742;  Same,  (3),  III.  1152,  1153;  Pari.  Reg. 
XI.  777.  XXVII.  527,  528. 

="  Pari.  Reg.  XXXVIII.  367;  Hans.  (2),  VI.  »  Pari.  Reg.  LI.  231,  2.32;    ILtns.    (2),  IV. 

69,  70.  518,  519;  Same,  VII.  1394. 

<  Hans.  (2),  VI.  69,  70.  w  Pari.   Reg.    XXXVUL   367;     Hans.    (1), 

6  Comm.  Deb.  Xll.  299;  Pari.  Reg.  XXIIL  XXX VL  1291;  Same,  (2),  IV.  2.13. 

895;  Same,  XXXVIII.   367;    Hans.   (2),  VI.  »  Hans.  (1),  X.  757:     Same,  (2),   IV.  613; 

69,  70;  Same,  518.  Same,  (3),  III.  1194;  Same,  VI.  056,  659. 

•  Hans.  (2),  XVI.  470. 


Chap.  VIL]  order  among  the  members.  6o5 

1692.  It  would  not,  perhaps,  be  practicable,  to  lay  down  any  very 
precise  and  definite  rules,  as  to  the  occasions  on  which  the  duty  of 
the  speaker  retjuires  his  interference;  but,  from  the  language  of 
eminent  and  experienced  speakers,'  it  may  be  gathered,  that,  w  here 
subjects  are  brought  under  consideration,  in  which  members  feel 
deeply  interested,  or  where  members  are  speaking  under  the  excite- 
ment of  great  warmth  of  feeling,  in  which  circumstances,  expres- 
sions are  likely  to  escape  them  in  the  heat  of  debate,  which,  though 
personal  and  oft'ensive  in  their  terras,  are  not  perhaps  intended  to 
be  personally  offensive,  —  it  is  not  the  duty  of  the  speaker  to  nicely 
measure  and  weigh  every  expression  that  may  chance  to  be  used  ; 
or  to  lay  hold  of  particular  expressions  and  give  them  a  meaning 
with  which  they  were  not  intended  to  be  applied,  and  in  which  they 
possibly  may  not  have  been  understood ;  or,  by  interfering  in  a 
trilling  matter,  to  give  it  more  importance  than  it  deserves ;  or  to 
understand  equivocal  expressions  in  an  offensive  and  personal 
sense  ;  or,  in  general,  to  interfere  at  all,  unless  he  feels  strongly  that 
some  personal  disrespect  is  intended.- 

1693.  When  a  member  is  indulging  in  a  line  of  remark,  which, 
though  apparently  personal  and  disorderly,  is  of  such  a  nature,  that 
it  may  be  explained  by  something  to  follow,  it  is  entirely  consistent 
with  the  speaker's  duty,  to  wait  and  give  the  member  an  opportu- 
nity to  conclude  his  sentence  in  such  a  manner  as  to  explain  ^\  hat 
would  othervvise,  and  taken  by  itself,  be  offensive  and  disorderly.'^ 

1694.  When  the  speaker  is  called  upon  by  the  house  generally, 
to  interfere,  or  when  some  member  rises  and  calls  the  member 
speaking  to  order,  the  speaker  first  delivers  his  opinion  upon  the 
point  of  order ;  if,  in  his  judgment,  the  member  is  not  disorderly,  he 
directs  him  to  proceed ;  if,  on  the  contrary,  he  sustains  the  call  to 
order,  he  then  either  simply  informs  the  member,  that  he  cannot 
proceed  in  the  same  manner,  or,  if  he  thinks  the  occasion  requires 
it,  calls  upon  him  to  retract,  explain,  or  apologize.  K  the  speaker 
himself  interferes,  in  the  first  instance,  he  at  once  explains  the 
reason  of  his  interference,  and  proceeds  as  already  stated. 

1695.  In  calling  upon  a  member  to  explain,  or  apologize,  the 
speaker  sometimes  accompanies  the  demand  with  remarks  calcu- 
lated to  allay  heat,  and  restore  harmony ;  such,  for  example,  as  that 
"the  gentleman  must  have  heard  imperfectly  or   misunderstood 

1  Hiiiis.  (1),  XII.  812;  Same,  (3),  XXXIV.      in  the  house,  it  seems  to  be  the  speaker's  duty 
632;  Same,  IV.  561;  Same,  XXVII.  120.  to  interfere  at  once.     Grey,  II.  407. 

«  When  the  member  attacked  is  not  present         »  H;in~.  (2),  IV.  243;    S.ime,  (3),  III.  1194; 

Same,  (2),  VIII.  410;  Grey,  IV.  128. 


656 


LEGISLATIVE    ASSEMBLIES. 


[Part  VI. 


those  expressions  which  he  so  warmly  condemns ; "  ^  that  "  the 
gentleman  had  allowed  language  to  escape  him  —  unintentionally 
no  doubt,  —  in  the  heat  of  debate,  which  he  was  sure  he  would  be 
anxious  to  explain  ;"2  that  "  he  wab  sure  the  honorable  member 
could  not  mean  to  impute  to  any  gentleman  in  that  house,  a  pre- 
meditated and  deliberate  intention  to  use  expressions  such  as  those 
he  had  described ; "  ^  "  that  he  was  sure  the  member,  having  so 
offended  would  discharge  his  duty  by  apologizing  for  the  offensive 
expressions  he  had  used ; "  '^  or  that  "  he  was  quite  sure  the  hon- 
orable member  did  not  mean  to  express  what  his  language  would 

imply."  ^ 

1696.  When  the  speaker  thus  takes  notice  of  any  expression  as 
personal  and  disorderly,  and  tending  to  introduce  heat  and  confu- 
sion, and  calls  upon  the  offending  member  to  explain,  it  is  the  duly  of 
the  latter  immediately  to  explain  or  retract  the  offensive  expres- 
sions, and  to  apologize  to  the  house  for  the  breach  of  order,  in  terms 
large  and  Uberal  enough  both  to  satisfy  the  house,  and  the  member 
of  whom  the  offensive  expressions  were  used.^  The  speaker's 
demand  usually  produces  the  required  explanation,  at  once ;  if  not, 
the  speaker  then  repeats  the  call  for  explanation,  and  informs  the 
member,  that  if  he  does  not  immediately  respond  to  it,  it  wdll 
become  the  duty  of  the  chair  to  name  him  to  the  house ;  if  the 
member  should  still  refuse,  the  speaker  would  then  name  him  to 
the  house ;  upon  which  proceedings  would  immediately  ensue  for 
the  purpose  of  censuring  or  punishing  such  member  for  his  disor- 
derly conduct." 

1697.  The  opinion  of  the  speaker,  as  to  the  point  of  order,  and 
his  demand  of  explanation,  if  he  sees  fit  to  make  one,  are  usually 
acquiesced  in ;  though  it  is  undoubtedly  competent  to  the  house  to 
revise  the  one,  or  refuse  its  sanction  to  the  other,  at  its  pleasure. 

1698.  The  proceedings  above  described  are  chiefly  intended  to 
check  disorder  in  debate,  and  to  prevent  misunderstanding  and 
strife  among  the  members.  Another  more  formal  mode  of  pro- 
ceeding, which  is  equally  appUcable  to  all  offences,  committed  in 
the  use  of  disorderly  words,  and  which  may  of  course  be  adopted 
in  reference  to  the  class  of  offences  now  under  consideration,  is  to 
have  the  words  complained  of  first  taken  down  in  writing,  and  en- 
tered among  the  clerk's  minutes.     This  mode  oi  proceeding,  the 


i  Comm.  Deb.  Xn.  299. 

*  Hans.  (3),  III.  1152, 1153. 
8  Hans.  (3),  IL  401. 

*  Hans.  (3),  XXVIF.  120. 


B  Hans.  (3),  XXXL  474. 

8  Hatsell,  H.  234,  note. 

»  Hans.  (3),  XXIL  115, 116, 117, 118. 


ClIAP.    VII.]  ORDER   AMONG    THE   MEMBERS.  657 

principal  purpose  of  which  is  the  censure  of  the  offending  member; 
as  well  as  that  which  takes  place,  when,  in  consequence  of  the 
apology  demanded  being  refused,  or  the  offended  member's  declining 
to  express  his  satisfaction,  the  house  takes  measures  to  prevent  the 
quarrel  from  being  carried  further ;  will  be  treated  of  at  length  in 
another  place. 

1G99.  The  subject  of  the  present  chapter  cannot  be  more  appro- 
priately concluded  than  with  the  following  judicious  and  sensible 
remarks  of  Mr.  Hatsell :  ^  "  The  difficulty  w  hich  often  occurs,  of 
obtaining  an  apology  for  words  spoken  in  debate,  especially  when 
the  offending  person  thinks  he  had  sufficient  provocation  for  using 
the  expressions  objected  to,  ought  to  be  a  warning  to  the  house,  and 
particularly  to  the  chair,  to  interfere  at  first ;  and  not  to  permit  any 
expressions  to  pass  from  any  member  unnoticed,  which,  being  ap- 
plied by  any  other  member  as  personally  offensive  to  himself,  may 
draw  forth  further  words  of  heat  and  contumely ,2  till,  at  last,  con- 
fusion arises,  —  different  members  take  a  warm  and  eager  part  in 
the  dispute,  —  and  besides  the  time  that  is  lost  in  composing  the 
differences,  the  house  of  commons  exhibits  a  scene  of  indecency  and 
disorder,  not  very  becoming  to  their  character  as  gentlemen,  much 
less  as  one  of  the  component  parts  of  the  great  council  of  the  na- 
tion assembled  in  parliament." 

1700.  What  is  said  bij  the  speaker,"^  or  of  him,*  is  no  exception 
to  the  rule  relating  to  personality  in  debate ;  and  the  same  pro- 
ceedings may  take  place  in  relation  thereto,  so  far  as  they  are  prac- 
ticable, as  in  the  case  of  disorderly  words  spoken  by  or  of  a  mem- 
ber ;  the  speaker  putting  the  question,  in  the  same  manner. 


1  Hatsell,  II.  234,  note.  the  discussion  on  it  protracted."      By  Mr 

2  "  In  all  my  parliamentary  experience,  I  Speaker  Manners  Sutton,  Hans.  (3),  V.  1D88. 
have  never  found  a  question  of  disorder  miti-  '  Comm.  Jour.  XXXII.  707,  708 

Rated  or  simplified  by  being  elongated,  and  ♦  Hans.  (I),  X.  1160, 1170 


658  LEGISLATIVE   ASSEMBLIES.  [PaET    VL 


CHAPTER    EIGHTH. 

OF  THE  RULES  RELATING  TO  THE  PRESERVATION  OF  THE  HAR- 
MONY AND  INDEPENDENCE  OF  THE  SEVERAL  BRANCHES  OF 
THE  LEGISLATURE. 

1701.  According  to  the  constitution  of  the  legislature,  it  is  es- 
sential to  the  due  and  efficient  performance  of  its  functions,  that 
the  several  branches,  of  which  it  is  composed,  should  stand  upon  a 
footing  of  the  most  perfect  equality,  with  respect  to  each  other,  and 
that  they  should,  in  every  respect,  be  entirely  independent  each  of 
the  otlier.^ 

1702.  In  order  to  the  preservation  of  these  essential  privileges 
of  equality  and  independence,  it  is  important,  that  neither  branch 
should  encroach  upon  the  other,  by  undertaking  any  matter  of 
business,  which  the  constitution  has  confided  exclusively  to  such 
other  branch ;  or  interfere  in  any  matter  depending  before  it,  so  as 
to  preclude,  or  even  influence,  that  freedom  of  debate  or  of  action, 
which  is  essential  to  a  free  council ;  or  claim,  and,  much  less,  un- 
dertake to  exercise,  any  control  or  authority  over  the  persons  of  the 
members  or  officers  of  the  other.^ 

1703.  Hence,  it  is  a  general  rule,  that  neither  of  the  two  houses 
can  properly  take  notice  of  any  bill,  or  other  matter,  depending  in, 
or  of  votes  given,  or  of  speeches  made,  by  the  members  of  the 
other,  until  the  same  are  communicated,  or  otherwise  promulgated, 
in  the  usual  and  parliamentary  manner.'^  The  same  rule  is  appli- 
cable, of  course,  to  the  sovereign  or  executive,  so  far  as  he  is  a 
branch  of  the  legislature. 

1704.  This  rule  proceeds  upon  the  understanding,  and  takes  it 
for  granted,  that  the  proceedings  and  debates  of  each  house  are 
known  only  to  its  own  members,  and  within  its  own  walls;  and 
that  they  cannot  regularly  be  made  known  but  by  itself,  or  taken 
notice  of  elsewhere,  except  with  its  own  consent.  But  this  under- 
standing, though  still  true  in  a  parliamentary  sense,  and  therefore 
implied  in  all  that  relates  to  the  rules  of  order,  is,  at  the  present 
day,  a  mere  fiction.  The  proceedings  and 'debates  of  both  houses 
are  published  daily  and  read  by  all  the  members  of  both,  and,  in 

1  Hatsell,  in.  67.  «  HatseU,  IL  356. 

2  Hatsell,  n.  366:  Same,  III.  67. 


Chap   VIIL]         hakmont  among  the  branches.  659 

fact,  are  well  known  to  everybody,  who  will  take  the  trouble  to 
become  acquainted  with  them. 

1705.  In  consequence  of  this  regular  publication  of  the  debates, 
there  is  a  strong  temptation  constantly  presented  to  members,  to 
disregard  the  rule.  "  The  same  questions  are  discussed  by  persons 
belonging  to  the  same  parties  in  both  houses;  and  speeches  are 
constantly  referred  to  by  members,  which  this  rule  would  exclude 
from  their  notice.  The  rule  has  been  so  frequently  enforced,  that 
most  members,  in  both  houses,  have  learned  a  dexterous  mode  of 
evading  it  by  transparent  ambiguities  of  speech  ;  and,  although 
there  are  few  orders  more  important  than  this  for  the  conduct  of 
debate,  and  for  observing  courtesy  between  the  two  houses,  none, 
perhaps,  are  more  generally  transgressed.  An  ingenious  orator 
may  break  through  any  rules,  in  spirit,  and  yet  observe  them  to  the 
letter."  i 

1706.  In  order  to  render  the  rule,  as  above  stated,  fully  intelli- 
gible in  its  practical  application,  it  will  be  necessary  to  consider 
it  in  a  threefold  point  of  view,  namely :  First,  as  forbidding  all 
expressions  concerning  the  other  house,  or  its  members,  or  the  sov- 
ereign, which,  if  uttered  with  reference  to  the  house,  of  which  the 
speaker  is  a  member,  would  be  disorderly ;  second,  as  forbidding  all 
reference  to,  or  introduction  of  the  proceedings  or  debates  of  the 
other  house,  for  the  purpose  of  commenting  on  them,  either  by 
way  of  answer,  explanation,  commendation,  discussion,  or  animad- 
version ;  and,  third,  as  forbidding  the  introduction  of,  or  reference 
to,  the  proceedings  of  the  other  house,  or  the  opinion  of  the  sov- 
ereign, for  the  purpose  of  influencing  the  determination  of  the  house, 
of  which  the  speaker  is  a  member. 

1707.  I.  All  allusions  and  expressions,  concerning  the  other 
house,  its  members,  or  proceedings,  or  concerning  the  sovereign  or 
his  acts,  which,  if  used  with  reference  to  the  house,  of  which  the 
person  speaking  is  a  member,  would  be  disorderly,  are  unquestion- 
ably offences  against  the  house,  in  which  they  are  uttered,  A\hether 
spoken  with  or  without  reference  to  any  particular  act  or  proceed- 
ing.     Ml*.    O'Connell's   ironical  description   of   Lord  Brougham,^ 

1  May,  251.  ation  as  to  be  deprived  of  it,  —  not  by  an  ad- 

'^  "  iMr.  O'Connell  (in  debate  on   tlie    ad-  verse  party,  —  but  got  rid  of  as  an  incnm- 

Iress):  It  is  not  difficult  to  conclude,  that  the  brance  by  his  own  friends.     They  could   not 

person  (if  any  such  there  be)  capable  of  such  allow  him  any  longer   to  remain  in  an  office, 

conduct,  must  Ijc  one  of  the  worst  judges  that  for  the  performance  of  the  duties  of  which  he 

ever  existed,  and  though  he  may  combine  the  exhibited  a  total  disqualification.     They  had 

lutlicrou'i  character  of  court  jester  with   the  replaced    him   by  an    excellent   pei-son,   but 

gravity  of  a  judge,  and  be  so  unfit  for  his  situ-  nothing  could  diminish  the  contemptuous  no- 


660  LEGISLATIVE    ASSEMBLIES.  [PaRT    VL 

for  which  he  was  called  to  order  by  IVIr.  Speaker  Abercrombie,  on 
the  ground  of  "  the  very  great  inconvenience  which  must  arise  from 
having  a  war  carried  on  between  the  two  houses,  —  in  disguise, 
it  was  true,  — but  still  very  intelligibly,"  is  an  instance  of  a  per- 
sonal attack  upon  a  member  of  the  other  house.^  The  parliament- 
ary experience  of  the  same  gentleman  also  furnishes  an  example  of 
an  attack  upon  the  sovereign  in  his  legislative  capacity,  when  he 
characterized  the  king's  speech,  at  the  opening  of  the  session  in 
1833,  as  "  brutal  and  bloody."  Being  called  to  order,  and  justifying 
liimself  on  the  ground,  that,  as  the  speech  was  the  act  of  ministers 
and  not  the  personal  act  of  the  sovereign,  he  had  a  right  to  speak 
of  it  in  terms  of  severity,  the  speaker,  Mr.  Manners  Sutton,  "  put  it 
to  the  honorable  and  learned  member,  whether  if  order  and  decency 
were  to  be  preserved  in  the  public  debates  of  the  house,  they  could 
possibly  be  preserved  consistently  with  the  employment  of  such 
language,  whether  applied  to  the  speech  of  the  king's  ministers,  or 
to  a  speech  just  delivered  by  his  majesty  himself  in  person."  '^ 

1708.  Li  reference  to  offences  of  this  description,  Mr.  Hatsell  lays 
down  the  following  rules  for  the  government  of  the  speaker  and  of 
the  house :  —  "If  there  is  any  breach  of  the  rules  of  decency  and 
gentlemanly  decorum,  if  public  reprehension  and  accusation  de- 
generate into  private  obloquy  and  personal  reflections,  it  is  the  duty 
first  of  the  speaker,  and,  if  he  neglects  that  duty,  then  of  the  house 
Itself,  to  interfere  immediately,  and  not  to  permit  expressions  to  go 
unnoticed  or  uncensured,  which  may  give  a  ground  of  complaint  to 
the  other  house  of  parliament,  and  thereby  introduce  proceedings 
and  mutual  accusations,  between  the  two  houses,  which  can  never 
be  terminated  without  difficulty  and  disorder."  ^ 

1709.  If  an  offence  of  this  kind  should  be  committed,  of  so 
aggravated  a  character  as  to  deserve  censure  or  punishment,  it  can 
only  be  taken  cognizance  of  by  the  house  in  which  it  is  committed ; 
and  the  nature  and  mode  of  redress,  or  punishment,  if  punishment 
is  necessary,  must  be  determined  upon  and  inflicted  by  it;  each 
house  having  exclusive  jurisdiction  over  the  persons  of  its  members, 
for  all  parliamentary  offences  committed  within  its  walls.*  That 
house  may,  of  course,  either  take  up  the  matter  spontaneously,  or 


taon  entertained  of  him  by  his  own  party.     A  but  as  landmarks  to  be  avoided  by  all  future 

judge  of  that  description  must  have  been  the  chancellors."    Hans.  (3),  XLV.  138,  139. 
ridicule  of  the  bar  and  the  terror  of  clients,  »  Hans.  (3),  XLV.  138,  139. 

one  who  mistook  rapidity  for  the  due  admin-         *  Hans.  (3),  XV.  162. 
istration  of  justice,  and  who  made  decrees,         «  Hatsell,  III.  74. 
which  served  not  as  examples  to  be  imitated,         *  May,  250,  251. 


Chap.  VI II.]        harmony  among  the  branches.  661 

upon  the  complaint   of  the  other,  or  of  the   individual  member 
assailed.' 

1710.  II.  It  is  in-egular  also  to  refer  to  or  introduce  the  proceed- 
ings or  debates  of  the  other  house,  though  there  is  no  question 
pending  at  the  time,-  for  the  purpose  of  inaking  them  the  subject 
of  comment,  whether  in  the  way  of  answer,  explanation,  commenda- 
tion, discussion,  or  animadversion,  and  whenever  any  such  allusion 
is  made;  in  any  form  in  which  it  can  be  brought  within  the  control 
of  the  house,  as  disorderly,  it  is  immediately  checked  by  the  speaker ; 
though,  perhaps,  the  matter  itself  might  with  strict  regularity  be 
introduced  into  the  debate,  were  it  not  for  the  impropriety  of  refer- 
rins:  for  it  to  the  other  house. 

1711.  The  following  are  instances,  —  taken  at  random, —  in  w  hich 
references  of  this  kind  have  been  checked  as  irregular :  where  a 
member  said  he  was  astonished  to  hear  that  a  particular  clause  in  a 
bill  was  the  production  of  a  noble  lord ;  ^  where  a  member  said  "  he 
thought  it  likely  that  this  day  would  not  pass  without  a  motion 
being  made  by  a  noble  lord  in  another  place  j"*^  where  a  member 
said,  "  he  had  read  the  argument  of  a  noble  earl  in  another  place  on 
this  subject,"  etc.  ;'5  making  the  clauses  of  a  bill  in  progress  through 
the  other  house  the  subject  of  discussion;^  where  a  member"  con- 
gratulated the  house  and  the  country  on  the  patriotic,  open,  and 
manly  declaration  made  last  night  by  an  individual,  a  most  illus- 
trious member  of  the  upper  house ; "  '  where  a  member  attempted 
to  read  the  minister's  speech,  in  the  lords,  from  a  newspaper,  begin- 
ning ^^^th  the  words,  "my  lords ;"^  where  a  member  said,  "that  he 
saw,  in  a  publication  of  that  morning,  expressions  attributed  to  a 
noble  lord,  which  he  believed  and  hoped  he  had  never  made  use 
of — 1he  marquis  of  Londonderry  was  reported  to  have  stated,  in  a 
public  place,"  etc. ;  ^  where  a  member  said,  "  that  a  certain  individ- 
ual had  stood  up  in  his  place,  in  another  house,  to  stigmatize  the 
people  of  Ii-eland ; "  ^^  referring  to  the  majority  by  which  a  bill  had 
passed  in  the  other  house,  and  commenting  on  the  constitution 
of  that  majority ;  ^'  where  a  member  said,  "  that  a  noble  lord,  in 
another  place,  had  thought  proper  to  make  the  interests  of  a  mighty 
people,  and  the  captivity  of  Don  Carlos,  the  subject  of  merri- 
ment." 12 

1  Hatsell,  III.  67;  Mav,  251.  '  Hans.  (2),  XHI.  172. 

3  Han?.  (3),  XLI.  204.  8  Haus.  (3),  H.  25. 

3  Pari.  Rej;.  VII.  (2),  190.  »  Hans.  (3),  HI.  937. 

4  Hans.  (1),  XXVll.  178.  "  Hans.  (3),  XXXIV.  2GS. 
6  Hans.  (1),  XXXVI.  1183.  "  Hans.  (3),  XLIII.  3G0. 

•  Hans.  (2),  X.  72;  Same,  (8),  LXIX.  670.  '-  Hans.  (3),  LXXVI.  15C8. 

/)6 


662  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

1712.  The  rule  above  stated  admits  of  an  exception  in  regard  to 
matters,  which  appear  on  the  votes  of  the  commons,  after  they  have, 
been  commmiicated  to  the  lords,  or  on  the  journals  of  the  lords,  after 
they  have  been  communicated  to  the  commons,  and  have  accordingly 
become  matters  of  history :  thus,  where  a  member  in  the  debate  on 
a  morion  respecting  the  omission  of  the  queen's  name  from  the 
liturgy,  was  interrupted  on  the  gi'ound  that  it  was  irregular  to 
remark  on  the  motives  which  had  influenced  members  of  the  other 
house  of  parliament,  the  speaker,  Mr.  Manners  Sutton,  said,  "  that 
the  distinction,  as  to  the  remarks  made  upon  the  other  house  of 
parliament,  was  this :  —  At  the  end  of  every  session,  the  journals 
of  the  house  of  lords  were  communicated  to  the  house  of  commons, 
as  the  votes  of  the  commons  were  regularly  communicated  to  the 
lords.  As  soon  as  the  journals  of  the  lords  were  so  communicated, 
they  became  matter  of  historical  record,  and  whatever  appeared 
upon  the  face  of  them  could  be  remarked  upon."  ^ 

1713.  In  regard  to  referring  to  or  discussing  measures  pending 
in  the  other  house,  though  it  is  not  in  order  to  go  into  the  details, 
as,  for  example,  to  advert  to  and  discuss  the  clauses  of  a  biU ;  ^  yet, 
where  the  measure  is  of  a  public  character,  the  subject  of  it  may  be 
alluded  to  and  discussed,  in  connection  with  the  intentions,  real 
and  supposed,  of  the  government,  as  to  such  a  measure  ;  ^  nor  is  it 
irregular,  in  the  house  which  passes  a  bill,  or  agrees  to  some 
measure,  which  is  sent  to  the  other  for  concurrence,  to  inform  that 
house,  that  the  biU  or  measure  in  question  has  received  the  unani- 
mous approbation  of  the  house  from  which  it  is  sent,  by  inserting 
the  words  nemine  contradicente  or  nemine  disentiente,  in  the  indorse- 
ment authenticating  it ;  ^  and  it  is  not  irregular,  in  the  house  sending 
a  biU  or  other  measure,  to  remind  the  house  to  which  it  is  sent,^ 
that  it  is  pending  in  that  house. 

1714.  It  is  considered,  and  with  reason,  so  important,  that  each 
branch  of  the  legislature  should  act  with  entire  independence,  that 
it  is  regarded  as  irregular  and  disorderly,  to  attempt  to  promote  or 
oppose  any  measure,  by  stating  the  proceedings  in  reference  to  the 
same  or  a  similar  measure,  in  the  other  branch ;  as,  for  example,  to 
say,  that  "  if  the  gentleman,  who  made  the  motion,  had  been 
informed  of  what  had  passed  in  the  house  of  lords  the  preceding 
day,  he  never  would  have  made  that  motion,  as  he  knew  no  biU 

1  Hans.  (2),  IV.  213.  ^  j.  of  H.  23d  Cong.  2d  Sess.  530;  J.  of  S 

2  Hans.  (2),  X.  72;  Same,  (3),  LXIX.  670.        23d   Cong.  2d   Sess.   239;    Reg.  of  Deb.   XI 
«  Hans.  (3),  XV.  882,  885.  Part  2,  1662. 

*  Pari.  Reg.  XV.  238. 


Chap.  VIII.]  harmony  AMOiiTG  the  branches.  663 

could  pass  without  the  lords ; "  '  that  "  he  should  bring  in  just  such 
another  bill  with  the  amendments,  and  then  gentlemen  who  meant 
to  oppose  it  should  recollect,  that  it  had  passed  that  house  without 
even  a  division,  and  that  it  had  passed  the  house  of  loids  without 
any,  or  with  very  little  opposition;"-^  or,  to  speak  of  the  large 
majority  by  which  this  bill  had  been  carried,  in  the  other  house  of 
parliament;' 

1715.  III.  It  is  also  highly  irregular  to  introduce  the  name  of  the 
sovereign  in  debate,  for  the  purpose  of  influencing  the  determina- 
tion of  the  house,  for  two  reasons,  first,  because  the  sovereign 
cannot  be  supposed  to  have  a  private  opinion,  apart  fi-om  and  inde- 
pendent of  the  responsible  advisers  of  the  crown,  and  therefore  the 
private  opinion  of  the  sovereign  is  of  no  more  account  than  that 
of  any  other  individual ;  and,  secondly,  because  the  sovereign,  acting 
under  and  with  the  advice  of  the  constitutional  and  responsible 
advisers  of  the  crown,  cannot  participate  in  any  such  manner  in  the 
functions  of  legislation. 

1716.  The  legislative  power  of  the  sovereign  is  defined  with 
admirable  force  and  clearness  in  the  remonstrance  of  the  lords  and 
commons  addressed  to  Charles  I.  16th  December,  1641,  in  which 
they  declare  :  —  "  That  it  is  their  ancient  and  undoubted  right  that 
your  majesty  ought  not  to  take  notice  of  any  matter  in  agitation 
and  debate,  in  either  of  the  houses  of  parliament,  but  by  their  infor- 
mation or  agreement;  and  that  your  majesty  ought  not  to  pro- 
pound any  condition,  provision,  or  limitation,  to  any  bill  or  act  in 
debate  or  preparation  in  either  house  of  parliament,  or  to  manifest 
or  declare  your  consent  or  dissent,  approbation  or  dislike,  of  the 
same,  before  it  be  presented  to  your  majesty  in  due  course  of  par- 
liament ;  and  that  every  particular  member  of  either  house  hath  free 
liberty  of  speech  to  propound  or  debate  any  matter,  according  to 
the  order  and  course  of  parliament;  and  that  your  majesty  ought 
not  to  conceive  displeasure  against  any  man  for  such  opinions  and 
propositions  as  shall  be  in  such  debate ;  it  belonging  to  the  several 
houses  of  parliament  respectively  to  judge  and  determine  such 
errors  and  olfences,  which,  in  words  or  actions,  shall  be  committed 
by  any  of  their  members,  in  the  handling  or  debating  any  matters 
there  depending."  * 

1717.  In  accordance  with  the  constitutional  doctrine  here  laid 
down,  the  commons,  on  the  17th  Dec.  1783,  resolved :  —  "  That  it 

1  C:iv.  Deb.  I.  448.  »  Hans.  (3),  XLHI.  360. 

«  Hans.  (1),  U.  1087.  *  Haas.  P.  H.  U.  978. 


664  LEGISLATIVE   ASSEMBLIES.  [PaRT    V  i 

is  now  necessary  to  declare,  that  to  report  any  opinion  or  pretended 
opinion  of  his  majesty,  upon  any  bill  or  other  proceeding  depending 
in  either  house  of  parliament,  with  a  view  to  influence  the  votes  of 
the  members,  is  a  high  crime  and  misdemeanor,  derogatory  to  the 
honor  of  the  crown,  a  breach  of  the  fundamental  privileges  of  par- 
liament, and  subversive  of  the  constitution  of  this  country." 

1718.  It  is,  therefore,  an  estabhshed  rule,  which  is  strictly 
adhered  to,  in  spirit  as  well  as  in  letter,  in  both  branches,  that  no 
member  shah  introduce  any  mention  of  the  name  of  the  sovereign, 
in  debate,  in  such  a  manner  as  to  interfere  with  the  freedom  of 
debate,  or  for  the  purpose  of  influencing  the  determination  of  the 
house,  or  the  votes  of  the  members,  in  reference  to  any  matter  pend- 
ing in  parliament.^ 

1719.  The  rule,  however,  is  not  to  be  construed  so  strictly  as  to 
exclude  the  statement  of  a  fact,  in  which  the  name  of  the  sovereign 
may  be  concerned,  provided  the  fact  is  one,  which  is  proper  to  be 
communicated  to  the  house,  and  which  the  member  is  authorized 
to  communicate.  The  following  instances,  in  which  the  name  of 
the  sovereign  was  allowed  to  be  introduced,  will  serve  to  explain 
the  limitation  of  the  rule  as  above  stated.  In  the  debate,  Februarj' 
24th,  1729,  on  the  foreign  loan  bOl,  the  pm-pose  of  wliich  was  to 
prevent  loans  to  foreign  princes,  —  the  commitment  of  the  biU 
being  opposed,  —  Sir  Robert  Walpole  Stated,  "  that  he  had  the 
king's  leave  to  declare,  that  there  was  at  this  time  a  subscription 
on  foot,  for  the  service  of  the  emperor,  and  money  was  raising  for 
his  use,  and  that  the  view  of  the  bill  was  to  prohibit  such  loans  and 
assistance  to  that  potentate."  When  he  sat  down,  Mr.  Wortley 
Montague  complained  that  the  minister  had  introduced  the  name 
of  the  king  to  "  overbear  their  debates ; "  whereupon.  Sir  Robert 
Walpole  explained,  "  that  he  had  not  brought  in  the  name  of  the 
king  to  influence  gentlemen  or  to  overbear  the  debates ;  that  as  a 
privy-councillor  he  was  sworn  to  keep  the  king's  council  secret,  and 
that  he  had  therefore  asked  his  majesty's  permission  to  state  what 
he  knew,  but  which,  without  his  leave,  he  could  not  have  divulged ; 
that  he  had  mentioned  the  positive  assurances,  which  were  received 
not  as  a  message  from  the  king,  but  by  his  majesty's  leave,  —  not 
by  his  command,  but  only  by  his  permission."  And  thus  the  mat- 
ter appears  to  have  ended,   upon  the  explanation   given   by  the 


1  Comm.  Deb.  VIL  58;  Pari.  Reg.  XIII.  414,  415;    Same,  XVL  112;    Hans.  (2),  II.  278; 
Bame,  XUI.  208,  209;  Same,  XVII.  1030. 


Chap.  VIIL]  harmony  among  the  branches. 


665 


minister,  without  any  opinion  being  expressed  by  the  speaker,  or  by 

the  house.^ 

1720.  On  the  9th  May,  1843,  Sir  Robert  Peel  said,  "  On  the 
part  of  her  majesty,  I  am  authorized  to  repeat  thedeclaralion  made 
by  king  William,"  in  a  speech  from  the  throne,  in  reference  to  the 
legislative  union  between  Great  Britain  and  Ireland.  These 
expressions  behig  objected  to,  the  speaker  (Mr.  Shaw  Lefevre)  gave 
his  own  opinion:  "That  there  was  nothing  inconsistent  with  the 
practice  of  the  house,  in  using  the  name  of  the  sovereign,  in  the 
manner  in  which  the  right  honorable  baronet  had  used  it.  It  was 
quite  true,  that  it  would  be  highly  out  of  order  to  use  the  name  of 
the  sovereign  in  that  house,  so  as  to  endeavor  to  influence  its 
decision,  or  that  of  any  of  its  members,  upon  any  question  under 
its  consideration ;  but  he  apprehended  that  no  expression,  which 
had  fallen  from  the  right  honorable  gentleman,  could  be  supposed 
to  bear  such  a  consti-uction."  And  lord  John  Russell  explained, 
"  that  the  declaration  of  the  sovereign  was  made  by  the  right  honor- 
able baronet's  advice,  because  any  personal  act  or  declaration  of 
the  sovereign  ought  not  to  be  introduced  into  that  place ; "  to  which 
Sir  Robert  Peel  added,  "  that  he  had  merely  confirmed  on  the  part 
of  her  majesty,  by  the  advice  of  the  government,  the  declaration 
made  by  the  former  sovereign."  ^ 

1721.  The  rule  admits  of  an  exception,  where  the  subject  under 
consideration  has  direct  reference  to  the  sovereign  in  his  public 
capacity,  from  the  necessity  of  the  case ;  as,  for  example,  in  the 
debate,  July  6,  1820,  on  a  motion  for  referring  the  papers  relating 
to  the  queen  to  a  secret  committee.  In  this  debate,  a  member 
having  said,  "  That  the  queen's  opponent  was  the  king;  he,  who 

I  May,  263;  Comm.  Deb.  VTI.  58.  of  the  executive  in  the  business  of  legislation, 
«  May,  253,  254.  It  seems  hardly  necessary  the  debates  on  the  president's  protest ;  Reg. 
to  obsei-ve,  that  what  is  said  in  the  foregoing  of  Deb.  X.  Part  1,  12,  28,  485,  525, 1317 ;  Part 
chapter  concerning  the  sovereign,  is  appli-  2,  1406,  1421,  1432,  1450,  1434;  Cong.  Globe, 
cable  in  this  country  to  the  executive  branches  XI.  973;  and  on  Mr.  Benton's  expunging 
of  our  several  governments.  See,  concerning  resolution,  J.  of  S.  23d  Cong.  2d  Scss.  200; 
the  harmony  which  ought  to  exist  between  Same,  24th  Cong.  2d  Sess.  83,  111,  123,  124; 
the  two  houses,  Lloyd's  Deb.  1.290;  Cong.  Reg.  of  Deb.  XI.  Part  1,  510;  Same,  414. 
Globe,  VI.  203:  concerning  allusions  in  one  The  authority  of  the  executive  branch  in  this 
branch  to  what  is  said  or  done  in  the  other,  countrj',  to  interfere  in  matters  of  legislation, 
Reg.  of  Deb.  IV.  Part  1,  669,  670;  Same,  XII.  depends,  in  part,  upon  custom  or  usage,  but 
Part  1,  414;  J.  of  S.  V.  92;  J.  of  H.  19th  Cong,  chictly  upon  constitutional  provisions.  It  is 
1st  Sess.  374;  Reg.  of  Deb.  VII.  372;  Same,  IX.  confined,  for  the  most  part,  to  the  statement 
Part  2,  1759;  Same,  XI.  Part  1,  1234:  Same,  of  f\icts,and  the  presentation  of  papers,  before 
Part  2,  1657;  Same,  XII.  Part  2,  2264;  con-  any  act  of  legislation,  and  the  approval  or  dis- 
cerning reflections  upon  the  executive,  .1.  of  approval  of  bills. 
H.  VI.  445 :    and  concerning  the  interference 

56* 


666  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

was,  not  absolute  master  of  their  lives  and  property,  but  the  grand 
source  of  distinction  and  honor,  and  often  of  property ;  who  had 
a  direct  and  positive  influence  where  her  majesty  was  to  be  tried; 
who  held  the  means  of  reward,  titles,  orders,  and  ribbons ; "  and 
being  called  to  order,  the  speaker  (Mr.  Manners  Sutton)  said  — 
"  He  felt  this  to  be  a  very  difficult  question.  It  was  evident  it 
was  impossible,  on  this  occasion,  to  exclude  what  was  excluded  on 
every  other  occasion.  But  where  the  introduction  was  necessary, 
still  greater  caution  ought  to  be  used.  It  was  highly  improper  to 
impute  direct  influence  to  the  king  in  cither  house  of  parliament, 
but  he  was  aware  that  the  same  thing  could  be  conveyed  by  put- 
ting it  hypotheticaUy."  ^ 

1722.  Another  exception  to  the  rule  occurs,  w^here  the  measure 
under  consideration  is  one,  in  which  the  crown  has  a  distmct  inter- 
est ;  as,  in  grants  of  money  in  certain  cases,  and  in  bills  relating 
to  the  royal  prerogatives,  the  hereditary  revenues,  or  the  personal 
property  or  interests  of  the  crown  ;  in  reference  to  which  it  is 
necessary,  at  some  stage  of  the  proceedings,  to  have  the  consent  or 
recommendation  of  the  sovereign;  which  is  signified  verbally 
through  some  one  of  the  ministers,  who  is  also  a  member  of  the 
house.2 


CHAPTER    NINTH. 

OF  THE  RULES  RELATING  TO  REGULARITY  OF  PROCEEDING. 

1723.  I.  The  first  rule,  to  be  mentioned  under  this  head,  is,  that 
no  member,  in  speaking,  is  to  refer  to  any  thing  said  or  done,  in  a 
previous  debate,  during  the  same  session.^  One  reason  of  this  rule 
is,  that  it  is  a  wholesome  restraint  upon  members,  to  prevent  them 
from  renewing  a  debate  which  has  already  been  brought  to  a  close, 
and  which  might  otherwise  be  interminable ;  and  there  would  be 

1  Hans.  (2),  11.  278.  with  or  without  a  question,  it  cannot  be  re- 

«  May,  335.  ferred  to,  May,  249;    Comm.    Deb.    XL  376, 

3  Mr.  May  says,  — "on  a  question  already  377;  Pari.  Reg.  XLIV.  206,  207;   Hans.  (2), 

decided  by  thehouse,"  —  but  this  cannot  be  XIII.  129,  130;   Same,  (3),  XL.   629;    Saioe, 

strictly  true  in  any  other  sense  than  that  if  LIIL  473;  Same,  LXXVIII.  137,  138;  Same, 

the  debate  has  been  brought  to  a  close  in  any  XXVII.  121,  122;  Same,  XIII.  1408;   Reg.  of 

manner,  either  temporarily  or  finally,  either  Deb.  XII.  Part  1,  414. 


ClIAP.  IX.]  REGULARITY   OF   PROCEEDING.  667 

little  use  in  the  rule  prohibiting  the  same  question  or  matter  from 
being  brought  forward  a  second  time,  in  the  same  session,  after 
having  once  been  decided,  if,  without  being  moved,  its  merits  might 
be  discussed  again  and  again.^  Another  reason  for  it  is  found- 
ed in  the  good-sense  and  justice,  which  prohibit  all  explanation 
of  words  uttered  in  debate,  unless  an  explanation  is  demanded  at 
the  time,  so  that  the  member,  whose  words  are  complained  of,  may 
have  an  opportunity  to  retract  them,  or  to  explain  their  real  mean- 
ing, while  the  words  themselves  and  the  circumstances  attending 
the  speaking  of  them  are  stUl  fresh  in  his  recollection  and  in  the 
minds  of  the  house.^ 

1724.  In  the  application  of  this  rule,  it  is  immaterial  whether 
there  is  a  question  pending  or  not,^  or  whether  the  member,  whose 
words  are  referred  to,  is  present  or  absent,*  at  the  time  the  refer- 
ence takes  place,  or  whether  the  spealdng  of  the  words  referred  to 
was  in  a  debate,  strictly  so  called,  or  on  some  less  formal  occasion, 
as,  for  example,  in  giving  an  answer  to  a  question ;  nor  is  it  ma- 
terial for  what  purpose  the  reference  is  made,  whether  for  that  of 
explaining,''  or  of  demanding  an  explanation,"  or  for  the  purpose  of 
commenting  upon,"  or  of  answering  or  replying  to,^  arguments  used 
on  a  former  occasion ;  but  it  is  an  aggravation  of  the  irregularity 
to  refer  to  or  quote  the  words  of  a  former  debate,  as  published  in 
a  newspaper.^ 

1725.  If  the  occasion,  on  which  the  reference  is  made,  is  not  a 
continuation  of  that,  on  which  the  words  referred  to  were  used,  as, 
for  example,  where  a  debate  is  adjourned,  the  latter  must  be  con- 
sidered as  a  previous  debate,  within  the  meaning  of  the  rule ;  so, 
every  succeeding  stage  of  a  bill,  or  other  matter,  presenting  as  it 
does  a  new  and  different  question,  gives  occasion  to  a  new  debate. 

1726.  Li  regard  to  the  particular  words  or  expressions  made 
use  of  on  a  former  occasion,  the  rule  seems  to  be  strictly  en- 
forced, all  reference  thereto  being  considered  disorderly ;  ^"^  but, 
in  respect  to  the  subject-matter  of  a  debate,  it  is  the  practice  of  the 
house  to  allow  great  latitude  ;  the  speaker  not  deeming  it  liis  duty 
to  watch  strictly  every  violation  of  the  letter  of  the  rule,  but  leav- 

1  May,  249.  f  Hans.  (3),  LIII.  473. 

a  Pari.  Reg.  X.  160.  »  Pari.   Reg.   LIX.  131;    Same,  LXII.  146; 

»  Hans.  (1),  XXXJV.  1260.  Hans.  (2),  VHI.  574. 

♦  Hans.  (2),  Xin.  129,  130.  »  Hans.  (3),  LHI.  473;  Same,  LXXVHI.  137, 

*  Hans.  (1),  XXXIV.  1260.  138. 

•  Hans.  (2),  Xin.  1408;    Pari.  Reg.   XVH.        w  Hans.  (2),  XIH.  129,  130;  Same,  (3),   XL. 
B82;  Same,  LII.  47;  Hans.  (1),  XXXIV.  1260;      829;  Same,  XXVIL  121,  122 

Bame,  (3),  XXXVII.  1323;  Same,  1328. 


668  LEGISLATIVE   ASSEMBLIES.  [PaRT    VL 

ing  the  matter  to  be  regulated  by  the  general  sense  of  the  house, 
and  taking  from  them  the  hint  how  far  the  rule  may  be  relaxed  in 
each  particular  case.^  It  would,  however,  be  considered  disorderly, 
to  go  into  a  formal  reply  to  arguments  used  on  a  former  occasion, 
in  reference  to  another  subject,"^  or  to  reply  directly,  in  one  stage  of 
a  bill,  to  the  observations  of  another  member,  made  in  a  former 
stage ;  ^  though  in  such  cases,  it  is  undoubtedly  competent  to  go 
into  arguments  on  the  general  measure.* 

1727.  It  is,  of  course,  within  the  discretion  of  the  house,  in  ref- 
erence to  this  rule,  as  well  as  to  others,  to  make  particular  excep- 
tions on  such  occasions  as  they  think  proper.  An  indulgence  of 
this  kind  is  usual,  it  seems,  "  where  a  member  has  a  personal  com- 
plaint to  make;"'^  and,  on  one  occasion,  the  speaker  (Mr.  Man- 
ners Sutton)  said  :  "  It  was  most  certainly  irregular  to  refer  to  a 
former  debate;  but,  as  he  had  not  interfered  in  the  allusion  of 
one  honorable  member,  which  was  irregular  when  it  was  made,  he 
was  at  a  loss  to  see  how  he  could  now  interfere,  to  prevent  another 
honorable  member,  who  conceived  himself  alluded  to  in  his  ab- 
sence, from  giving  that  explanation  respecting  himself,  which  he 
deemed  relevant."  ^ 

1728.  The  rule  also  admits  of  an  exception,  not  from  the  in- 
dulgence of  the  house,  but  of  right,  where  the  words  adverted  to 
are  themselves  the  subject  of  a  new  and  independent  motion,'  or 
constitute  the  reason  upon  which  such  a  motion  is  founded.^ 

1729.  II.  A  second  rule,  belonging  to  the  class  now  under  con- 
sideration, relates  to  the  proceedings  of  committees  (other  than 
committees  of  the  whole) ;  which  cannot,  in  general,  be  attended 
to,  or  introduced,  in  debate,  until  regularly  brought  before  the 
house,  by  the  report  of  the  committee,  or  in  some  other  parlia- 
mentary way.^ 

1730.  While  a  committee  is  in  being,  and  in  the  discharge  of 
its  functions,  all  incidental  reference  to  it,  or  its  proceedings,  is  dis- 
orderly ;  as,  where  a  member  in  debate  said  that  "  it  was  painful 
to  any  person  attending  the  Carlow  committee  now  sitting,  to  wit- 
ness the  interminable  disputes  as  to  residence  ; "  and,  being  called 
to  order,  the  speaker  (Mr.  Shaw  Lefevre)  said  that  "  no  honorable 

1  Hans.  (2),  XIII.  129, 1-30.  '  Pari.  Reg.  LTX.  131. 

2  Pari.  Reg.  LTX.  131;    Same,  LXH.  146;         »  Hans.  (3),  VII.  387. 

Hans.  (1),  XIX.  723,  724,  725.  »  It  is  not  in  order  to  refer  in  the  house  to 

*  Hans.  (2),  VIII.  574.  arguments  used   in    the    committee    of   the 

*  Hans.  (2),  VIII.  574.  whole,  or  vice  versa,  Cong.   Globe,  V.    144; 
6  Hans.  (3),  LIX.  485;  May,  249.  Same,  XIV.  372. 

*  Hans.  (2),  VI.  944. 


Chap.  IX.]  regularity  of  proceeding.  669 

member  was  af  liberty  to  refer  to  the  proceedings  of  an  election 
committee,  before  it  had  reported  to  the  house : "  ^  so,  when  a 
member,  in  debate,  attempted  to  state  what  had  taken  place  in  a 
committee,  "  a  difficulty  having  arisen,  in  consequence  of  an 
honorable  member  having  asked  to  be  admitted,"  and  was  called  to 
order,  on  the  ground,  "  that  no  member  had  any  right  to  state  what 
had  occurred  before  a  committee,  until  that  committee  had  made 
its  report,"  the  speaker  confirmed  the  doctrine  as  thus  laid  down.^ 

1731.  "Where,  however,  a  motion  is  made,  relative  to  the  com- 
mittee itself,  or  its  proceedings,  the  rule  admits  of  an  exception ; 
thus,  where  a  committee  on  a  private  bill  had  brought  its  pro- 
ceedings and  its  existence  to  a  close,  before  making  a  report,  by 
an  adjournment  without  day,  and  a  motion  was  made,  that  the 
committee  be  revived  and  proceed  with  the  business  referred  to  it, 
a  discussion  ensued  as  to  the  extent  to  which  the  proceedings  of 
the  committee  could  regularly  be  stated  or  introduced  as  a  ground 
for  the  motion,  in  which  the  speaker  (Mr.  Manners  Sutton)  said, 
"  it  was  difficult  to  lay  down  a  strict  rule,  as  to  the  statements 
which  might  be  made  of  transactions  in  a  committee,"  but  that  if  it 
was  necessary  to  read  from  or  introduce  the  minutes  of  their  pro- 
ceedings, "  the  regular  course  was  first  to  move  the  house,  that  the 
minutes  be  produced ; "  and  it  was  agreed,  that  every  member  who 
had  attended  an  open  committee  might  state  in  his  place  what  had 
occurred  there,  and  that  what  had  occurred  in  the  committee  might 
be  stated,  to  lay  a  ground  for  the  production  of  the  minutes, 
though  the  minutes  themselves  could  not  be  read  until  regularly 
before  the  house.^ 

1732.  When  the  report  of  a  committee  has  been  made,  it  is 
irregular,  even  though  the  report  itself  is  under  consideration,  to 
allude  to  or  introduce  the  committee  or  their  proceedings  in  debate, 
except  so  far  as  they  appear  in  the  report  itself,  unless  there  is  a 
motion  made,  or  to  be  made,  that  the  report  be  recommitted :  the 
report  of  the  committee  appointed  to  inquire  into  the  state  of  the 
impeachment  against  Governor  Hastings  having  been  brought  up 
and  read,  and  a  motion  made  thereupon,  one  of  the  members  of 
the  committee  proceeded  to  make  some  remarks  upon  the  commit- 
tee and  its  proceedings,  but  the  speaker  (Mr.  Addington)  called 
him  to  order,  and  informed  him,  "  that  he  could  not  regularly  state 
to  the  house  any  thing  upon  the  subject  of  the  report,  that  waa 

1  Hans.  (3),  XLVTH.  993.  »  Hans.  (2),  X.  10,  11. 

«  Hans.  (3),  LXIV.  737. 


670  LEGISLATIVE    ASSEMBLIES.  [PaRT    Vl 

not  in  the  report  itself,  unless  he  intended  to  move  for  its  recom- 
mitment." 1 

1733.   But  where  there  is  a  motion  to  recommit  a  report,  as 
above  stated,  or  where  a   motion  is  made  relative  to  the  proceed- 
ings of  a  tommittee,  after  it  has  reported,  statements  may  then  be 
made,  and  matters  introduced,  extrinsic  to  the  report :  thus,  where 
a  member,  having  given  notice  of  a  motion  to  call  the  attention  of 
the  house  to  the  proceedings  of  a  select  committee  which  had  made 
its  report,  was  proceeding  to  read  a  question  put  by  a  member  of 
the  committee  (the  member  himself  spealdng)  which  had  been  ex- 
punged by  a  vote  of  the  committee,  and  was  called  to  order,  the 
speaker  (Mr.  Shaw  Lefevre)  said:  "  If  he  understood  the  question 
rightly,  it  was,  whether  the  honorable  member  could  read  that  part 
of  the  examination  taken  before  the  committee  which  was   ex- 
punged, and  therefore  did  not  make  a  part  of  the  report.     That 
course  might  certainly  be  an  inconvenient  one,  but  he  was  bound 
to  say,  that  he  thought  the  honorable  member  quite  in  order  in 
adopting  it."  - 

1734.    Where  a  committee  makes  a  report  upon  some  incidental 
matter   or   question,  the  same   rules   apply;  and   nothing  can  be 
stated  with  reference  to  the  report  so  made,  but  what  appears  in 
the  report  itself,  although  included  in  the  other  proceedings  of  the 
committee :  thus,  where  an  election  committee  had  reported  on  the 
case  of  a  witness,  for  refusing  to  give  evidence  before  the  commit- 
tee, and  a  motion  was  made,  that   the  witness  be  brought,  to  the 
bar,  to  be  interrogated  by  the  speaker,  as  to  whether  he  would  per- 
sist in  refusing,  etc.,  a  member  of  the  committee  was  proceeding  to 
make  a  statement  of  what  had  transpired  before  the  committee,  but 
was  called  to  order  by  the  speaker,  "  who  reminded  him,  that  the 
committee  had  not  yet  made  its  report ;  and  that  it  was  contrary 
to  the  rules  of  the  house  for  the  proceedings  of  a  committee  to  be 
referred  to,  until  its  report  had  been  laid  upon  the  table  ;"'^  so,  in 
the  debate,  on  the  case  of  a  witness,  for  refusing  to  obey  the  speak- 
er's warrant,  to  produce  certain  papers  before  an  election  commit- 
tee, a  member  of  the  committee  was  not  allowed  to  mention  the 
kind  of  documents  respecting  which  the  summons  of  the  speaker 
was  supposed  to  have  been  disobeyed,  or  the  situation  in  which 
the   committee   stood,  on  the  occasion  of  a  vote,  on  the  ground, 

1  Pari.  Reg.  XXXV.  592.  »  Hans.  (3),  LXII.  1066. 

«  Haus.  (3),  LV.  602. 


Chap.  X.]  respect  due  from  the  members.  671 

that  no  such  reference  or  statement  could  be  made,  until  the  com- 
mittee had  reported.^ 

1735.  III.  A  third  rule,  relating  to  regularity  of  proceeding,  is 
that  which  prohibits  all  remarks,  in  debate,  tending  to  prejudice  the 
minds  of  members  on  the  subject  of  a  controverted  election,  which  is 
aheady  before  the  house,  or  expected  to  come  before  it ;  even  though 
the  remarks  may  be  in  themselves  relevant  to  the  question  in  refer- 
ence to  which  they  are  made,  as,  for  example,  where  the  motion  is 
for  an  exchange  of  lists  of  contested  votes.^ 


CHAPTER  TENTH. 

OF  THE  KULES  RELATING  TO  THE  RESPECT  DUE  FROM  THE 
MEMBERS  TO  THE  HOUSE  TO  WHICH  THEY  BELONG,  — TO  ITS 
POWERS,  ACTS,  AND  PROCEEDINGS,- AND  TO  THE  GOVERNMENT 
AND  LAWS  OF  THE  COUNTRY. 

1736.  The  offences  against  order  in  debate,  w^hich  are  the  sub- 
jects of  the  rules  embraced  in  this  chapter,  not  only  imply  a  great 
want  of  respect  in  the  persons  by  whom  they  are  committed, 
towards  the  body  of  which  they  are  members,  and  are  therefore 
vh-tual  if  not  actual  contempts,  but  they  are  also  calculated  to  de- 
grade the  legislature  and  its  members,  and  the  existing  institu- 
tions of  the  country,  in  the  estimation  of  the  people.  They  are 
never  necessary,  for  the  most  radical  reform,  in  the  power  of  the 
legislature,  can  be  effected  without  resorting  to  such  means ;  they 
tend  as  strongly  as  words  of  heat  and  anger  towards  individual 
members  to  produce  altercation  and  recrimination ;  and  they  should 
be  as  promptly  suppressed  as  any  offences  whatever  against  the 
peace,  dignity,  and  harmony  of  the  legislature. 

1737.  I.  All  reflections  on  the  house  itself,  as  a  political  institu- 
tion,  or  as  a  branch  of  the  government,  are  disorderly ;  ^  as,  for  a 

>  Han?.  (3),  LXII.  1179,  IIPO.     See,  as  to  253;   or  to  make  comments  upon  it,  if  the 

allusion  to  proceedings  of  committee  not  re-  chairman  has  alluded  to  it  in  the  way  of 

ported  on,  J.  of  H.  31st  Cong.  Ist  Sess.  393;  explanation;  and  generally,  Cong.  Globe,  VIIL 

Reg.  of  Deb.  IV.  Part  2,  1830;  Cong.  Globe,  209,  210. 

XXI.  214,  215;  to  show  that  report  was  irreg-  -Hans.   (1),    XXIV.  844;    Same,    (3),   VIL 

nlar,  Reg.  of  Deb.  XI.  Part.  2,  1436;  or  on  a  377. 

motion  to  recommit  it,  Cong  Globe,  III.  249,  ^  parl.  Reg.  XV.  302. 


672  LEGISLATIVE   ASSEMBLIES.  [PaET    VL 

member  of  the  house  of  commons  to  speak  of  the  house  of  lords, 
as  "  the  superior  house  of  parliament,"  ^  or  of  the  house  of  com- 
mons, as  "  the  inferior  branch  of  the  legislature,"  ^  or  as  "  not  now 
the  commons  of  England  in  parliament  assembled,"  ^  or  as  "  falsely- 
denominating  itself  the  commons  house  of  parliament ; "  *  or  to  say 
of  the  house  of  commons,  "  he  greatly  feared,  that,  in  reputation, 
that  house  had  not  a  leg  to  stand  upon."  ^ 

1738.  It  is  also  an  offence  against  the  house  itself,  for  a  member 
to  use  any  profane,  obscene,  or  indecent  language,  such  as  is  unfit 
for  the  house  to  hear,  or  for  any  member  to  utter,  although  not 
directed  against  or  reflecting  upon  the  house  itself,  or  any  of  its 
members.*^ 

1739.  II.  It  is  also  disorderly,  in  debate,  to  question  any  of  the 
acknowledged  and  indubitable  powers  of  the  house,  as,  for  example, 
its  power  to  commit  in  cases  of  breach  of  privilege.^  This  prin- 
ciple, though  established  with  particular  reference  to  the  power  of 
commitment,  is  equally  applicable  to  any  of  the  other  acknowl- 
edged powers  of  the  house. 

1740.  III.  It  is  irregular  to  reflect  upon,  argue  against,  or  in  any 
manner  caU  in  question,  in  debate,  the  past  acts  or  proceedings  of 
the  house,  on  the  obvious  ground,  that,  besides  tending  to  revive 
discussion  upon  questions  which  have  been  ahready  once  decided, 
such  reflections  are  uncourteous  to  the  house,  and  irregular  in  prin- 
ciple, inasmuch  as  the  member  is  himseK  included  in  and  bound 
by  a  vote  agreed  to  by  a  majority ;  ^  and  it  seems,  that  reflecting 
upon,  or  questioning  the  acts  of  the  "majority"  is  equivalent  to 
reflecting  upon  the  house.^ 

1741.  The  following  are  examples  of  irregularity,  in  reflecting 
upon  or  questioning  the  acts  and  proceedings  of  the  house,  namely, 
where  one  member  excused  another  under  the  condemnation  of  the 
house ;  ^^  where,  on  an  order  having  been  made  for  the  attendance 
of  Mr.  Wilkes,  at  the  bar,  after  he  had  been  expelled  the  house,  a 
member  said,  that  in  his  opinion,  Mr.  Wilkes  ought  to  attend  in 
his  place ;  ^^  where  a  member  said  he  intended  to  argue  against  a 
resolution  of  the  house,  passed  during  the  session  ;  ^^  where  a  mem- 

1  Pari.  Reg.  (2),  XII.  397.  »  Hatsell,  II.  234;  May,  250,  note. 

a  Hans.  (1),  XVI.  15.  »  Comm.  Deb.  VIII.  32, 33;  Pari.  Reg.  XXL 

»Hans.  (1),  XV.  338,  339.  357. 

4  Hans.  (1),  XXXV.  317.  i»  Grey,  IH.  248. 

6  Hans.  (1),  XV.  338,  339.  "  Pari.  Deb.  VL  103. 

•  Hans.  (3),  XVI.  217.  "  Cav.  Deb.  L  371. 

I  Hans.  (2),  IV.  1168. 


Chap.  X.J  respect  due  from  the  members.  673 

ber  said,  that  though  such  a  proceeding  might  be  consistent  with 
order,  he  was  sure  it  would  be  considered  by  the  country  as  dis- 
graceful and  contemptible  ;  ^  where  a  member  said,  that  "  if  a  com- 
mittee was  appointed,  he  wished  it  to  consist,  not  of  party  men^ 
as  on  the  late  occasion,  but  of  proper  people,"  the  speaker  deeming 
this  language  equivalent  to  speaking  of  committees  appointed  by 
the  house,  as  if  they  were  the  nomination  of  an  individual  ;2  saying 
that  a  motion  in  the  house  is  refused  by  power.'^  In  the  house  of 
representatives  of  the  United  States,  it  has  been  decided,*that  it  is 
irregular  in  a  member  to  charge  a  portion  of  the  house  "  with  an 
endeavor  to  drive  through  a  bill  at  all  hazards,  and  without  due 
consideration,"  ^  or  with  a  design  to  "  defeat  a  bill  by  indirection  ;"•" 
or  to  say  that  "  the  people  should  know  the  flagrant  violation  of 
their  rights  that  had  been  committed  by  the  house."  ^ 

174:^.  IV.  It  seems  from  the  following  decision  of  IVIr.  Speakei 
Abbott,  that  there  are  cases,  in  which  a  member  may  be  disorderly, 
by  uttering  reproaches  against  the  existing  government,  for  the  pur- 
pose of  bringing  it  into  disesteem.  A  member  saying,  in  debate, 
that  a  fact  had  come  to  his  knowledge  of  a  bill  accepted  by  govern- 
ment having  been  dishonored,  and  being  called  to  order,  for  making 
an  observation  which  tended  to  discredit  the  government,  the 
speaker  said,  "  He  would  deliver  his  opinion  on  the  subject,  which 
the  house  would  support  and  confirm,  if  right ;  if  wrong,  of  course, 
it  would  be  discountenanced.  His  opinion  was,  that  if  a  member 
of  that  house  cast  any  reproach  on  the  existing  government  of  the 
country,  under  the  general  charge  of  insolvency,  or  otherwise,-  to 
excite  disesteem  towards  it,  he  was  disorderly.  That  was  his  judg- 
ment, and  whether  it  was  correct  or  erroneous,  the  house  would 
judge." ' 

1743.  V.  It  is,  lastly,  irregular  and  disorderly  to  speak  in  dis- 
respectful or  abusive  terms  of  an  act  of  parliament,  —  especially  if 
it  is  one  which  is  political  in  its  character,  —  such  remarks  imputing 
discredit  to  the  legislature,  by  which  the  act  was  passed,  and  hav- 
ing a  tendency  moreover  to  bring  the  institutions  and  laws  of  the 
country  into  contempt.  It  is,  consequently,  disorderly  to  say  of  any 
existing  laws,  that  they  ought  to  be  forcibly  resisted;^  or  to 
describe  certain  laws  as  "  tyrannical  and  diabolical ; "  ^  or  to  say  of 

»  Hans.  (1),  n.  695.  «  Beg.  of  Deb.  X.  Part  4,  4274. 

«  Hans.  (1),  IV.  738.  '  Pari.  Reg.  LXH.  124. 

»  Comin.  Dob.  VIH.  201.  »  Pari.  Reg.  XLV.  83. 

«  Reg.  of  Deb.  X.  Part  3,  3760.  »  Pari.  Reg.  XLVH.  721. 
»  Reg.  of  Deb.  X.  Part  3,  3765. 


57 


674  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

the  laws  enacted  by  parliament,  that  the  inhabitants  of  Ireland  were 
not  bound  by  them.^ 

1744.  The  preceding  rules  relate  only  to  remarks  made,  or  lan- 
guage used,  incidentally,  in  the  course  of  debate,  respecting  the 
house,  or  its  powers,  acts,  or  proceedings,  or  the  government  or 
laws  of  the  country ;  but  they  do  not  prohibit  the  introduction  of 
any  or  all  of  these  topics,  and  their  orderly  discussion,  upon  perti- 
nent and  proper  questions  regularly  moved ;  thus,  the  constitution 
of  the  house  of  commons  may  be  discussed  on  a  question  of  par- 
liamentary reform  ;  the  power  of  the  house  to  commit  may  be 
submitted  as  a  question  by  itself  ;2  the  acts  and  proceedings  of  the 
house  may  be  argued  against  upon  a  motion  to  rescind  them ;  ^  the 
administi-ation  of  the  government  may  be  called  in  question  upon 
a  proper  occasion ;  and,  nothing  is  more  common  than  to  speak  in 
terms  of  the  utmost  severity  and  freedom  of  statutes,  upon  the 
question  of  their  repeal  or  modification.  In  all  these  cases,  how- 
ever, the  language  used  should  be  temperate,  decorous,  and  respect- 
ful ;  not  falling  below  the  importance  of  the  subject,  on  the  one 
hand;  nor,  on  the  other,  exceeding  the  just  limits  of  orderly 
debate. 

1745.  The  principle,  stated  in  the  preceding  paragraph,  applies 
equally  to  biUs  and  other  measures,  which  have  not  yet  passed, 
and  which  may  be  commented  upon  with  equal  severity  and  free- 
dom. The  following  language,  which  was  uttered  in  congress  in 
January,  1811,  has  probably  been  since  many  times  repeated.  A 
bill  "  to  enable  the  people  of  the  territory  of  Orleans  to  form  a  con- 
stitution, and  State  government,  and  for  the  admission  of  such 
State  into  the  Union,  on  an  equal  footing  with  the  original  States, 
and  for  other  purposes,"  being  under  consideration  in  the  house  of 
representatives  of  the  United  States,  Mr.  Quincy,  one  of  the  mem- 
bers from  Massachusetts,  was  called  to  order  for  using,  in  debate, 
the  following  expressions  :  —  "If  this  bill  passes,  it  is  my  deliberate 
opinion,  that  it  is,  virtually,  a  dissolution  of  this  Union,  that  it  will 
free  the  States  from  their  moral  obligations ;  and  that,  as  it  will 
then  be  the  right  of  all,  so  it  will  be  the  duty  of  some,  definitely  to 
prepare  for  separation,  amicably  if  they  can,  violently,  if  they  must." 
The  speaker  decided  that  the  above  language  from  the  semicolon 
to  the  end  was  out  of  order,  but  on  appeal  to  the  house,  his 
decision  was  reversed.* 


»  Hans.  (1),  XXXV.  369.  «  Grey,  III.  248. 

>  Hans.  (2),  IV.  1168.  «  J.  of  H.  Vll.  481 


(^HAP.   XL]  DISORDERLY   WORDS.  675 


CHAPTER     ELEVENTH. 

OF   PROCEEDINGS   WITH    REFERENCE   TO   DISORDERLY  OR    UNPAR- 
LIAMENTARY WORDS,  OR   IRREGULARITY  IN  DEBATE. 

1746.  Exception  may  be  taken  to  a  member  speaking,  or  pro- 
ceeding with  his  speech,  in  debate,  for  two  purposes, y/r^'^,  to  prevent 
him  from  committing  a  breach  of  order ;  or,  secondly,  to  correct  a 
breach  of  order  when  committed.  Exception  may  also  be  taken  to 
the  language  used  by  a  member  in  debate,  either  for  the  purpose  of 
requiring  the  words  which  give  offence  to  be  explained,  retracted,  or 
apologized  for,  or  for  the  purpose  of  censure  or  punishment  of  the 
member  using  them.  Proceedings  against  a  member,  for  the  pur- 
pose of  censure  or  punishment  for  the  use  of  disorderly  words, 
belong  to  another  part  of  this  treatise.  The  other  topics  above  indi- 
cated are  now  to  be  treated  of  in  connection  with  the  subject  of 
order  in  debate. 


Section  I.    Op    Proceedings   to   prevent   or   correct  Irregu 

LARiTY  IN  Debate. 

1747.  The  duty,  which  devolves  upon  the  speaker,  as  the  servant 
of  the  house,!  ^q  ^^j^g  ^are  that  all  decency  and  order  shall  be 
observed,'-^  is  one  of  the  first  in  importance  of  his  official  duties  j^ 
which,  however  difficult,^  irksome,""'  painful,'^  and  embarrassing,"  the 
performance  of  it  may  be,  is  nevertheless  essential  to  preserve  the 
dignity  of  the  house,^  to  secure  the  equal  rights  of  all  parties  and 
members,^  and  to  facilitate  the  business  of  the  house. i*' 

1748.  In  the  performance  of  this  duty,  while  the  speaker  will 
bear  in  mind  on  the  one  hand  the  difficulties  which  he  would  be 
obliged  to  encounter,  if  he  should  feel  bound  to  interfere,  on  every 


1  Cav.  Deb.  n.  315.  »  Hans.  (3),  XXXIV.  632;    Same,  (2),  VL 

s  By  Mr.  Speaker   Onslow.  Comm.  Deb.      69,  70. 

VII.  267.  t  Pari.  Reg.  XLIV.  206,  207. 

8  Hans.  '2),  VI.  60,  70.  8  Comm.  Deb.  XIL  299;  Hans.  (2),  VI.  69, 

*  Hans.  (2),  VI.  944.  70. 

♦  Purl.  Rog.  XXV.  309,  811.  »  Hans.  (2),  VI.  69,  70. 

w  Pali.  Resr.  XV.  302. 


676  LEGISLATIVE   ASSEMBLIES.  [PaKT   VI. 

trifling  deviation  from  order  that  might  take  place,^  and  the  incon- 
veniences that  would  result  to  the  progress  of  the  business  of  the 
house,  if  he  should  watch  strictly  for  every  violation  of  the  letter  of 
its  orders,-  and  will  therefore  regard  rather  the  convenience  of  the 
house,  than  the  sh'ictness  of  order,  in  matters  of  doubt,''  or  of  tri- 
fling importance ;  '^  he  will  not  be  unmindful,  on  the  other  hand, 
of  the  importance  of  observing  the  laws  and  regulations  of  the 
house,  in  their  substance  and  spirit,  in  order  to  preserve  the  dignity 
of  the  house,  and  to  carry  on  the  business  of  the  pubhc,  with  that 
celerity  and  regularity,  which  are  absolutely  necessary  to  the  due 
performance  of  legislative  duty.^ 

1749.  It  is  peculiarly  the  duty  of  the  speaker  to  interfere  in  the 
first  instance  for  the  preservation  of  order,  when,  in  his  judgment, 
the  occasion  demands  his  interference.  In  such  a  case,  therefore, 
the  judgment  of  the  speaker  being  formed,  he  at  once  interferes, 
and  enforces  the  order  of  the  house.  But,  though  the  speaker 
should  refrain  from  interfering,  either  because  the  occasion  is  not 
one  which,  in  his  judgment,  makes  it  necessary  to  do  so,  or  be- 
cause he  does  not  so  soon  perceive  the  breach  of  order,  or  because 
he  is  willing  to  give  a  member,  who  is  on  the  point  of  trans- 
gressing, an  opportunity  to  retrieve  himself,*^  it  is  the  right  of 
any  member,  notwithstanding,  to  rise  up  and  caU  to  order,  if, 
in  his  judgment,  the  occasion  demands  the  interference  of  the 
house. 

1750.  When  a  member  thus  caUs  to  order,  it  is  his  duty  in  the 
first  place,  to  state  wherein  he  apprehends  the  member  speaking  is 
disorderly ;  then  the  speaker  expresses  his  opinion  upon  the  point 
of  order  raised,  either  immediately,  or  after  hearing  the  question 
spoken  to  by  other  members,  including  the  member  calling,  as 
well  as  the  member  called,  to  order ;  and  either  sustains  the  call 
to  order,  or  sustains  the  member  in  the  line  of  remark  or  course  he 
was  pursuing,  or  in  the  use  of  the  words  to  which  objection  was 
made. 

1751.  When  the  speaker  is  thus  called  upon  to  interfere  upon 
the  point  of  order,  or  when  he  interferes  of  his  own  motion,  his 
duty  only  requires  him,  in  the  first  instance,  to  state  to  the  house 
what  the  rule  of  order  is,  in  reference  to  the  matter  in  question, 
and  to  declare,  at  the  same  time,  whether  the  member  is,  or  is  not  in 
order,  in  the  course  which  he  is  pursuing  or  attempting  to  pursue, 

1  Hans.  (2),  VI.  944,  *  Hans.  (3),  XXVIL  120. 

2  Hans.  (2),  XHI.  129,  130.  ^  Hans.  (3),  XXVI.  907. 
»  Hans.  (2),  XIII.  129, 130.  «  Haus.  (2),  VUI.  410. 


Chap.  XL]  disorderly  words.  677 

or  in  using  the  language  complained  of  as  disorderly.  The  opinion 
of  the  speaker,  when  thus  declared,  is  entitled  to  very  great  weight,^ 
and  is  ordinarily  received  as  conclusive ;  but  it  remains,  notwith- 
standing, for  the  house  to  sanction  it  by  its  acquiescence;-  and 
unless  so  sanctioned,  it  is  entitled  to  no  more  consideration  than 
that  of  any  other  member.  The  speaker,  in  giving  his  opinion, 
sometimes  adds  such  expressions  as  these :  that  "  it  is  for  the  house 
to  decide  whether  the  member  sjiall  go  on  or  desist;""^  or,  that 
"  the  house  will  support  and  confirm  his  opinion,  if  right ;  if  wrong, 
of  course  it  will  be  discountenanced ; "  ^  or,  that  "  this  is  his 
judgment,  and  whether  it  is  correct  or  erroneous,  the  house  will 
judge  ; " ''  or,  that  "  whenever  he  attempts  to  enforce  the  order, 
and  the  house  overrules  him,  (as  they  undoubtedly  have  the  power 
to  do  whenever  they  please,)  it  is*  not  to  be  imputed  to  him  as  a 
neglect  of  duty."*^ 

1752.  When  the  speaker's  opinion  is  thus  pronounced,  it  is 
deemed  to  be  acquiesced  in,  and  to  make  an  end  of  the  question, 
as  a  matter  of  course,  unless  something  is  done  to  oveiTule  it. 
The  speaker  cannot  be  called  upon  to  revise  it,  nor  can  it  be  called 
in  question  by  any  member,  nor  is  any  member  at  liberty  to  argue 
against  it ;  but  if  any  member  doubts  its  authority  or  correctness, 
his  only  com-se  is  to  take  the  sense  of  the  house  upon  it  by  a  ques- 
tion.' This  is  a  most  uncommon  proceeding,  of  which  there  are 
but  few  examples  in  all  the  recorded  experience  of  parliament.^  It 
is  not,  however,  by  any  means  extraordinary,  for  the  opinion  of  the 
speaker  to  be  virtually  oveiTuled, — or,  perhaps,  more  properly  speak- 
ing, for  the  rule  of  the  house,  as  laid  down  by  the  speaker,  to  be 
dispensed  with  for  the  particular  occasion,  —  by  a  tacit  acquiescence 
of  the  house  in  the  course  of  proceeding,  which,  according  to  the 
speaker's  opinion,  is  disorderly ;  as,  for  example,  where  a  member, 
bemg  called  to  order,  and  adjudged  out  of  order  by  the  speaker,^  is 


1  Pari.  RcR.  LIX.  256;  Same,  LX.  365,  366.  (1),  IX.  325,  326,  327.    In  others,  ajrain,  a  re- 

*  Hans.  (1),  XXI.  191;  Same,  VII.  825.  mark  of  the  member  called  to  order,  in  ex- 

*  Hans.  (1),  XXI.  191.  .  planation  or  justification,  has  been  received 
«  Pari.  Reg.  LXII.  124.  without  objection.  Hans.  (2),  IV.  213;  Pari. 
6  Pari.  Keg.  LXII.  124.  Reg.  XXVll.  527,  528;  Hans.  (3),  VIII.   722, 

*  Pari.  Reg.  (2),  IX.  65.  723;  Same,  LIII.  473;  Same,  (1),  XXXV.  369; 
'  Hans.  (3),  LXIIL  424.    In  some  cases,  a  Hans.  (1),  XXIV.  1260;  Pari.  Reg.  XXL  464. 

diflcrent  proceeding  in  point  of  form  seems  to  ^  jt  is  quite  common  in  our  legislative  as- 

have  been  allowed,  for  the  purpose  of  calling  semblies,  to  appeal  from  the  decision  of  the 

in  question  the  speaker's  opinion.     Hans.  (3),  chair,  on   these   as  well  as  other  points  of 

LII.  1063,  1064, 1065.     In  others,  a  remark  of  order. 

the  speaker,  before  being  called  upon  for  his  *  For  speakuig  second  time. 

Dpinion,  has   bojn   commented  upon.     Hans. 

57* 


I 
678  LEGISLATIVE   ASSEMBLIES.  [PaET   VI, 

nevertheless  suiFered  by  the  house  to  proceed  as  before.  If  the 
opinion  of  the  speaker  is  acquiesced  in,  it  then  becomes  an  order 
of  the  house,  to  be  enforced  in  the  same  manner  as  the  other 
orders. 

1753.  The  speaker,  in  giving  his  opinion  upon  the  point  of 
order,  not  unfrequently  takes  occasion  to  explain  the  grounds  of  it, 
for  the  instpuction  of  the  house,  when  he  thinks  the  matter  of 
sufficient  importance ;  ^  or  to  state,  for  the  benefit  of  the  member, 
how  far  he  is  in  order,  and  how  far  not  so,^  or  in  what  manner  he 
may  proceed  in  order ;  ^  or  to  explain,  in  justification  of  himself, 
why  he  had  not  interfered,  or  why  he  had  not  interfered  sooner ;  * 
and  also  to  make  any  suggestions  which  he  may  deem  useful, 
either  to  preserve  the  dignity,  or  promote  the  convenience  of  the 
house.-^ 

1754.  The  opinion  of  the  speaker  either  sustains  the  point  of 
order,  or  the  member  speaking,  or  refers  the  question  to  the  decision 
of  the  house.  In  the  first  case,  the  member  cannot  proceed,  in  the 
course  so  decided  to  be  objectionable,  but  is  entitled  to  proceed,  if 
he  pleases,  in  order ;  in  the  second  case,  the  member  is  entitled  to 
proceed  as  before ;  ^  in  the  third,  the  member  proceeds  or  not,  accord- 
ing to  what  appears  to  be  the  sense  of  the  house.''' 

1755.  In  sustaining  the  call  to  order,  according  to  the  strict  rule 
of  the  house,  the  speaker  sometimes  suggests  the  propriety  of  an 
indulgence  to  the  member,  either  on  account  of  the  particular  cir- 
cumstances of  the  case,®  or  because  indulgence  has  been  usual  in 
similar  cases,^  as,  in  a  matter  of  privilege,!*^  or  in  the  case  of  a  per- 
sonal complaint  by,^^  or  of  a  personal  appeal  to  a  member,^^  or  of 
the  mover  of  a  motion  to  reply ;  ^^  or  informs  the  house,  that  the 
rule  had  not  been  strictly  insisted  on  ;^^  or  that  similar  practices  had 
grown  into  general  use ;  ^^  or  that  of  late  a  practice  had  arisen  of 

1  Pari.  Reg.  LXL  258;  Hans.  (1),  IL  613,  6  Parl.  Reg.  XXV.  309,  311 ;  Hans.  (3),  XV. 
614;  Same,  (3),   L  1329;  Same,   (2),  IL  25;      882,885. 

Same,  (2),  IV.  1168;  Pari.  Reg.  XXXV.  592;  »  Pari.  Reg.  LXIIL  673,  674;  Hans.  (1), 
Hans.  (3),  HI.  718.  XXXIH.  919;  Pari.  Deb.  XXXVHI.  368. 

2  Hans.  (1),  II.  613,  614.  i  Pari.  Reg.  LXH.  16,  17. 

»  Pari.  Reg.  LXL  258.  a  Pari.  Reg.  XXVL  278,  280:  Hans.  (1),  L 

<  Hans.  (1),  XLL  814;  Same,  XV.  218,  219;  801;    Same,  (3),  XXXH.   820;    Same,  (1),  L 

Pari.  Reg.  VH.  (2),  154;    Same,  XXV.  309,  814,815;  Same,  (3),  VIH.  724,  725. 

311;  Same,  LXIII.   788;  Hans.  (2),  IV.  243;  »  Hans.  (2),  IV.  1013. 

Same,  (3),  HI.  1194;   Same,  (2),  VIIL  410;  w  Hans.  (3),  XX.  6. 

Same,  (3),  XXVH.  120;    Pari.   Reg.  XLIV.  "  Hans.  (3),  LIX.  485. 

206,  207;   Hans.  (2),  XVH.  1030;    Pari.  Reg.  i-^  Hans.  (1),  XXXH.  1221. 

LVL  337;  Hans.  (2),  VI.  944;  Same,  (1),  IV.  "  Pari.  Reg.  XH.  127;  Same,  XXXH.  93, 94. 

177.  1*  Hans.  (2),  IV.  922,  923. 

lii  Hans.  (3),  IV.  1251. 


Chap.  XL]  disorderly  words.  679 

deviating  from  the  rule  ;  ^  or  that  a  rigid  adherence  to  the  rule  was 
sometimes  not  required;-  or  that  it  had  become  the  common  prac- 
tice of  the  house  to  disregard  the  rule;^  or,  that,  one  member 
having  been  indulged,  the  like  indulgence  should  be  extended  to 
another ; '  or  that  the  house  may,  if  they  think  proper,  dispense 
with  the  rule  in  the  particular  case/'  In  cases,  where  suggestions 
of  this  sort  are  made,  especially  if  they  express  also  -the  wishes  or 
opinion  of  the  speaker,  they  are  usually  adopted  and  sanctioned  by 
the  house,  either  by  a  tacit  acquiescence  in  the  course  suggested,  or 
by  some  informal  manifestation  of  opinion.  This,  however,  is  not 
always  the  case ;  the  house  sometimes  sustaining  the  strict  appli- 
cation of  the  rule,  as  laid  down  by  the  speaker/' 

1756.  In  sustaining  the  member,  the  speaker  sometimes  dis- 
affirms the  supposed  rule  of  order,  upon  wliich  the  call  is  predicated, 
as,  for  example,  where  a  member  was  called  to  order,  for  mention- 
ing in  debale  the  name  of  a  petitioning  candidate;'  and,  some- 
times, the  fact  alleged  as  the  act  of  disorder,  as,  for  example,  where 
the  speaker  said  he  did  not  understand  the  words  objected  to  as 
conveying  the  idea  imputed  to  them,  or  that  they  were  used  in  an 
offensive  sense.*^  Sometimes,  also,  when  allowing  a  member  to 
proceed,  he  takes  occasion  to  remind  him  of  the  terms  of  the  ques- 
tion;'' or  cautions  him  as  to  the  extent  to  which  his  renaarks  may 
be  allowed.^*' 

1757.  It  sometimes  happens,  that  the  speaker,  instead  of  express- 
ing his  opinion  on  either  side,  merely  intimates  a  doubt,  whether 
the  member  can  proceed  consistently  with  order ;  ^^  or  asks  instruc- 
tion of  the  house  upon  the  point  suggested ;  ^'^  or  refers  the  question 
to  the  discretion  or  feeling  of  the  house  ;  ^^  or  expresses  his  opinion 
hypothetically,  that  is,  that  if  the  member  intended  or  said  some 
particular  thing,  he  was,  or  was  not  in  order.^^ 

1758.  It  seems  to  be  an  established  principle  in  parliamentary 
practice,  that,  when  a  member  rises  and  addresses  the  house,  it  is 

»  Hans.  (3),  LXHI.  512.  "  Hans.  (1),  XXXII.  983;  Same,   XXVIU. 

9  Han^.  (1),  VII.  825.  108;  Same,  (2),  VII.  1394;  Simie,  IV.  240. 

»  Hans.  (3),  XXVII.  121, 122.  »  Hans.  (3),  XVIII.  89. 

♦  Hans.  (2),  VI.  944.  >»  Hans.  (1),  XI.  755;  Same,  XXXVI.  1183. 

5  Purl.  Reg.  LXII.  16,  17;    Hans.  (1),  XV.  »  Hans.  (2),  XII.  1314,  1315. 

164;    Same,  XVI.   739;    Same,  (3),  II.  538;  i^  Hans.  (1),  VII.  188,  207,  208. 

Same,  XXXII.  820;  Same,  (1),  I.  814.  815.  ^^  Hans.  (3),  XIII.  884;    Same,  (1),  VI.  847; 

«  Pari.  Reg.  LXII.  16,  17.  Same,  (2),  IV.  518,  519;  Same,  XIII.  129, 130. 

'  Hans.  (1),  Vm.  90.  »  Hans.  (3),  XXXII.  603;    Same.  II.  401; 

Same,  (2),  XIU.  208,  26y;  Same,  (1),  X.  700. 


680  LEGISLATIVE    ASSEMBLIES.  [PaRT   \h 

to  be  taken  for  granted,  that  he  does  so  for  the  purpose  of  doing  or 
saying  what  he  has  a  right,  according  to  the  orders  of  the  house,  to 
do  or  say ;  ^  thus,  where  a  member  was  called  to  order,  on  the 
ground,  that  it  was  not  apparent,  in  what  manner  the  circumstances 
mentioned  by  him  could  apply  to  the  question  before  the  house,  the 
speaker  (Mr.  Manners  Sutton)  said,  "that  he  took  it  for  granted, 
that  the  honorable  member  would  bring  his  observations  to  bear 
upon  the  motion  before  the  house,  and  that  he  meant  to  make  some 
proposition  for  the  consideration  of  the  house ; "  '^  so,  on  a  like 
occasion,  INIr.  Speaker  Abbott  said,  "  he  conceived  that  the  honor- 
able member's  observations  were  not  strictly  applicable  to  the 
motion  ;  but  he  was  always  delicate  in  interfering  upon  such  occa- 
sions, as  it  was  difficult  to  know,  whether  an  honorable  member 
might  not  conclude  with  something  that  would  bring  him  within 
order ;  "  ^  so,  on  another  occasion,  when  a  member  was  taken  down 
to  order,  the  speaker  said,  "  he  ought  to  go  on,  for  probably  what 
he  said,  he  may  explain,  before  he  ends  his  discourse ; "  *  so,  where, 
the  speaker  having  risen,  a  member  rose,  and  was  called  to  order, 
for  rising  after  the  chair  had  risen,  the  speaker  said,  "  It  is  true  that 
I  rose,  and  I  did  so  for  the  purpose  of  stating  that  when  the  honor- 
able and  learned  member  for  Dublin  was  about  restating  his  argu- 
ment, he  was  doing  that  which  was  inconsistent  with  an  explanation. 
The  honorable  member  for  Kilkenny  rose,  I  suppose,  for  the  purpose 
of  showing  that  the  honorable  and  learned  member  was  in  order; 
for  otherwise  he  had  no  right  to  rise."  ^ 

1759.  But,  when  it  is  apparent,  that  what  a  member  proposes  to 
do  cannot  be  done  consistently  with  order,  it  is  then  competent  to 
the  speaker  or  any  member  to  interfere  and  object  to  his  proceed- 
ing :  thus,  where  a  member  having  addressed  the  house,  when  there 
was  no  question  pending,  concluded  his  speech  without  a  motion, 
and  another  member  thereupon  rose  to  reply,  the  speaker  (Mr. 
Abbott)  interfered  and  prevented  him  from  doing  so,  on  the  ground, 
that,  without  the  authority  of  the  house,  it  would  be  irregular  in 
him  to  permit  any  discussion,  when  there  was  no  question  before 
it ;  ^  so,  where  a  member,  having  been  called  to  order  for  addressing 
the  house,  when  there  was  no  question  before  it,  without  hinting 
his  intention  to  conclude  with  a  motion,  rose  again, —  saying  that 
he  did  not  intend  to  submit  any  motion,  —  he  was  again  called  to 

1  See  Pari.  Reg.  LIX.  338.  *  Grey,  IV.  128. 

2  Hans.  (3),iIX.  1006.  "  Huns.  (3),  XXXIX.  701. 

3  Pari.  Reg.  LXIII.  788.  8  Parl.  Reg.  LXII.  16, 17. 


Chap.  XL]  disorderly  words.  681 

order,  and  prevented  from  proceeding ;  ^  so,  where  a  member,  in  the 
course  of  a  speech,  proposed  to  read  a  letter,  the  sul)ject  of  which 
he  stated,  he  was  informed  by  the  speaker  that  he  could  not  do  so 
consistently  with  order.^ 

1760.  In  like  manner,  if  it  is  apparent,  from  what  a  member  is 
saying,  or  has  already  said,  that  if  he  goes  on  he  will  commit  a 
breach  of  order,  he  may  be  interrupted  and  prevented  from  proceed- 
ing ;  ^  thus,  where  a  member,  in  the  course  of  his  speech,  said,  that 
another  member  "  was  reported  to  have  said,  the  other  evening,  and 
he  believed  did  say,"  the  speaker  (Mr.  Shaw  Lefevre)  rose  to 
order,  and  said  "  he  thought  it  was  his  duty  to  interfere,  on  this 
occasion,  because  he  was  sure  that  if  the  honorable  gentleman  went 
on,  he  would  transgress  one  of  the  rules  of  the  house."  * 

1761.  When,  however,  it  is  not  apparent,  but  only  highly  prob- 
able, from  what  a  member  proposes,  or  from  what  he  has  said,  or 
is  saying,  that  if  he  proceeds,  he  will  be  guilty  of  a  breach  of  order, 
it  is  then  for  the  discretion  of  the  speaker  and  of  the  house  to  de- 
cide, from  the  tone  and  manner  of  the  person  speaking,  and  the 
circumstances  of  the  case,  as  well  as  the  words  used,  whether  to 
interrupt  the  member,  or  to  allow  him  to  proceed.  K,  in  such  a 
case,  it  were  the  purpose  of  the  member  to  say  what  would  be  a 
breach  of  order,  the  interruption  would  be  proper ;  if  otherwise, 
then  the  strong  probability,  from  the  circumstances,  that  he  would 
have  done  so,  had  he  not  been  interrupted,  would  be  a  sufficient 
justification  for  the  interruption ;  and  the  interruption  itself  would 
be  a  salutary  admonition  to  him  to  proceed  in  order. 

1762.  A  member,  in  the  course  of  his  speech,  having  made  use 
of  the  following  language,  "  for  no  man  living  could  believe, 
that  a  prince  of  the  house,  which  sat  on  the  throne  by  virtue  of  the 

I  revolution  of  1688,  should  promulge  to  the  world  that,  happen 
what  would,  when  he  came  to  fill  another  situation,  if  all  — "  a 
member  here  rose  to  order,  "  to  prevent  his  honorable  and  learned 
firiend  from  continuing  a  course  of  observation,  in  his  present  heat 
of  temper,  which  he  was  satisfied,  he  would,  in  his  cooler  moments, 
regret."  The  speaker,  Mr.  Manners  Sutton,  thereupon,  —  first  in- 
timating that  he  had  refrained  from  interfering,  because  as  the 
member  spealdng  had  himself  correctly  defined  the  order  of  the 
house  on  taking  up  the  subject  which  had  occasioned  the  present 
interruption,  it  was  his  (the  speaker's)   business  to  expect  that  he 

1  Pari.  Reg.  LXII.  200.    See  also  Hans.  (1),         ^  Hans.  (3),  LXI.  141;  Same,  LXIV.  261. 
VI.  143  "  Grey,  III.  120. 

*  Hans.  (3),  Lll.  318 


682  LEGISLATIVE  ASSEMBLIES.  [PaRT  VL 

would  not  depart  from  what  he  had  laid  down,  —  said,  "  that  if  the 
inferenee  di-awn  by  the  member  calling  to  order  was  correct,  if  his 
anticipation  of  what  was  coming  fi"om  the  gentleman  spealdng  was 
right,  there  could  be  no  question,  that  the  latter  would  be  out 
of  order,  and  the  further  proceeding  in  the  course  which  he  had 
announced  would  be  most  disorderly."  ^ 

1763.  AVhere  a  member  is  called  to  order,  and  checked,  before 
giving  utterance  to  any  thing  actually  disorderly,  the  proceeding  is 
strictly  for  the  purpose  of  preventing  a  breach  of  order  ;  where  the 
objectionable  words  are  actually  uttered,  and  the  member  is  called 
to  order,  the  proceeding  is  to  correct  the  irregularity  and  also  to 
prevent  its  recurrence  ;  and  in  both  cases,  where  the  call  to  order  is 
made  in  good  faith,  and  for  the  real  purpose  of  preserving  or 
enforcmg  the  order  of  the  house,  it  is  a  justifiable  proceeding,  even 
though  the  decision  of  the  speaker  should  pronounce  it  a  ground- 
less one  ;  but,  where  the  call  is  made  wantonly,  and  without  suffi- 
cient cause,  it  is  itself  in  the  highest  degree  disorderly.'-^ 

1764.  The  difficulty  of  precisely  knowing  beforehand,  in  most 
cases,  what  a  member  intends  to  say,^  is  such,  that  proceedings  in 
reference  to  disorderly  words  usually  take  place  after  the  words 
have  been  spoken,  and  have  in  view  only  to  correct  the  error,  and 
to  prevent  its  recurrence.  In  many  cases,  however,  it  is  known 
what  topics  a  member  intends  to  speak  to,  or  what  general  line  of 
argument  he  means  to  pursue,  from  his  own  declaration ;  and,  in 
others,  it  is  possible  to  form  a  sufficient  judgment,  from  what  a 
member  has  already  said,  or  is  in  the  act  of  saying,  as  to  what  he 
intends  or  is  about  to  say,  in  order  to  justify  and  require  proceed- 
ings to  prevent  the  member  from  committing  a  breach  of  order. 
Cases  of  the  former  description  have  already  been  sufficiently  con- 
sidered ;  those  of  the  latter  require  now  to  be  explained. 


Section  II.     Of  Proceedings  to   compel  a  Member  to  explain, 

RETRACT,   OR   APOLOGIZE,   FOR   DISORDERLY    WORDS. 

1765.    It  has  already  been  seen,  that  where  disorderly  words  are 
used,  which  are  of  a  character  to  give  offence  to  the  house  itself,  or 

1  Hans.  (2),  Xin.  208,  209.,  impossible  for  one  man  to  say  what  another 

2  Hans.  (1),  XIV.  368;  Grey,  HI.  120.  man  intends  to  utter;  it,  therefore,  is  impossi- 
8  Mr.  John  Home  Tooke,  being  interrupted      ble   for  another  to  say  what  I  am  going  to 

and  called  to  order,  in  the  course  of  his  speech  utter;  hence  it  is  generally  a  little  difficult, 

Baid,  —  "  I  entreat  the  house  to  consider,  that  until  a  man  has  got  to  the  end  of  his  propo- 

unless  the  brains  and  minds  and  understand-  sition,  to  judge  well  whether  he  is  in  order  or 

mgs  of  man  are  formed  exactly  alike,  it  is  not."     Pari.  Reg.  LIX.  326. 


Chap.  XL]  disorderly  words.  683 

to  any  of  the  members,  it  is  the  speaker's  duty  to  interfere,  and 
compel  the  offending  member  to  explain,  retract,  or  apologize  for, 
his  language.  In  some  cases,  however,  the  speaker  does  not  feel  it 
to  be  his  duty  to  interfere,  either  because  he  does  not  immediately 
perceive  the  personal  or  offensive  application  of  the  words,  or 
because  he  thinks  the  matter  of  trifling  importance,  or  because 
he  does  not  deem  the  language  unparliamentary.  It  is  nevertheless 
competent  for  any  member,  —  either  the  member  attacked,  or  any 
other,  — to  interfere,  and  take  measures  for  the  purpose  of  obtaining 
the  authority  of  the  house  to  compel  the  offender  to  retract  or  ex- 
plain his  words.  When  the  speaker  calls  upon  a  member  to  explain 
his  language,  he  does  it  in  the  name,  and  by  the  authority,  and 
with  the  implied  sanction,  of  the  house.^  The  proceedings  of  a 
member,  with  the  same  view,  are  intended  to  obtain  the  same 
requisition  of  the  house,  upon  the  member,  in  express  terms,  which 
the  speaker  assumes  impliedly  to  exist,  when  he  demands  an  ex- 
planation. Before,  however,  any  direct  vote  of  the  house  can  take 
place,  in  reference  to  an  explanation  or  retraction  of  the  words,  the 
words  themselves  must  be  reduced  to  writing  and  properly  authen- 
ticated, as  having  been  spoken  by  the  member.  The  words  are  to 
be  taken  down  by  the  clerk,  at  the  table,  so  as  to  become  a  part  of 
his  miimtes ;  in  order,  that,  being  so  taken  down,  the  house  may 
be  in  a  capacity  to  give  its  judgment  upon  them,  whether  they  are 
or  are  not  disorderly ;  for,  it  is  clear,  that  no  question  can  be  moved 
upon  them,  nor  the  sense  of  the  house  taken,  until  the  words  ob- 
jected to  form  part  of  the  minutes  of  the  house.^  This  proceeding 
will  now  be  explained. 


Article   I.     As  to  the  Time  when  the    Complaint  for  disorderly 

Words  must  be  made. 

1766.  Anciently,  it  seems  to  have  been  allowable  to  take  notice 
of  words  spoken  in  debate,  for  the  purpose  of  censure,  at  any  time 
during  the  session.  At  a  later  period,  it  was  established  as  a  rule, 
that  exception  should  be  taken  the  same  day,  and  before  the 
offending  member  had  gone  out  of  the  house ;  the  member  offended 
being  entitled  to  move,  that  the  former  should  not  leave  the  house 
until  he  had  given  satisfaction,  in  what  was  by  him  spoken  ;  and, 
if  the  proceeding  was  omitted  that  day,  "  it  could  not  be  recalled 

1  Hans.  (3),  XXII.  115,  116,  117, 118.  «  Kushworth.  L  593 


684  '  LEGISLATIVE  ASSEMBLIES.  [PaRT  VL 

afterwards,  in  order  to  avoid  mistakes,  and  out  of  a  willingness, 
rather  to  pass  by,  than  to  take  occasion  of,  offence."  ^ 

1767.  In  more  modern  times,  the  same  reasons  have  led' to  a 
still  further  limitation  of  the  time,  within  which  the  complaint 
must  be  made,  and  it  is  now  the  rule  and  practice,  "  that  if  any 
other  person  speaks  between,  or  any  other  matter  intervenes,  before 
notice  is  taken  of  the  words  which  give  offence,  the  words  are  not 
to  be  written  down,  or  the  party  censured."  ^  According  to  the 
rule,  as  thus  stated,  the  member  speaking  may  be  interrupted  in  his 
speech,  and  the  words  complained  of,  at  the  moment  they  are 
uttered ;  and  they  must  be  complained  of,  before  any  other  speaks, 
or  any  other  matter  intervenes ;  but  the  rule  does  not  specify  at 
what  point  of  time,  between  the  speaking  of  the  words,  and  the 
intervention  of  other  business,  if  the  member  should  continue 
speaking,  the  complaint  must  be  made.  From  the  manner,  how- 
ever, in  which  the  rule  is  stated  by  distinguished  speakers,^  as  well 
as  from  the  reason  upon  which  the  rule  is  founded,  it  seems  neces- 
sary that  the  interruption  should  take  place  immediately  on  the 
speaking  of  the  words,*  or  at  aU  events,  that  it  wUl  be  too  late  to 
notice  them,  if  the  member  is  permitted  to  continue  his  speech,  for 
any  length  of  time,  without  interruption.^ 


Article  II.  As  to  the  Mode  of  Proceeding- for  obtaining- the  Order 
of  the  House  to  take  down  the  Words,  and  taking  them,  down 
and  verifying  them. 

1768.  The  member,  who  thinks  proper  to  complain  of  words 
spoken,  rises  to  order,  and,  first  stating  the  words  to  which  he  takes 
exception,  exactly  as  he  conceives  them  to  have  been  spoken,  com- 
plains of  them  as  disorderly,  and  desires  or  moves  that  they  may  be 
taken  down ;  which  it  is  the  duty  of  the  clerk,  at  the  table  to  do,  if 
it  should  be  the  sense  of  the  house,  that  is,  the  opinion  of  a  major- 
ity, that  the  words  ought  to  be  taken  down.  The  sense  of  the 
house  may  be  indicated  either  formally  or  in  an  informal  manner. 

1  Scobell,  81.  noticed  before  any  other  mutter  intervenes ;  if 

2  Hatsell,  II.  269,  note;  Lex.  Pari.  28L  complained  of  afler  the  intervention  of  other 
8  Pari    Reg.  XXII.  340;  Same,  XXV.  371;      matter,  the  speaker  will  put  a  stop  to  the  pro-* 

Same,  XXVI.  26.  ceedings,  as  a  matter  of  order;  if  between  these 
*  This  appears  to  be  the  rule  in  the  house  of  two  points,  the  house  will  decide,  on  the  mo- 
lords,  Hans.  (3),  XLVIII.  321.  tion  to  take  down  the  words,  both  as  to  their 
6  May,  259.  Perhaps,  therefore,  the  rule  being  disorderly,  and  as  to  whether  they  have 
may  be  thus  stated:  the  words  may  be  noticed  been  seasonably  noticed, 
the  moment  they  are  uttered;  they  must  bo 


Chap.  XL]  disorderly  words.  685 

The  latter  is  the  mode  as  described  by  Mr.  Hatsell.  The  former  is 
indicated  by  Mr.  Speaker  Addington,  in  stating  the  form  of  pro- 
ceeding. 

1769.  In  the  mode  stated  by  Mr.  Hatsell,  the  speaker  assumes 
what  the  sense  of  the  house  is,  or  judges  of  it  by  such  indications 
as  it  may  see  fit  to  give,  without  a  formal  question  being  put  and 
decided  by  a  vote.  This  manner  of  proceeding  is  thus  described  :  — 
"  The  speaker  then  may  direct  the  clerk  to  take  the  words  down ; 
but  if  he  sees  the  objection  to  be  a  trivial  one,  and  thinks  there  is 
no  foundation  for  their  being  thought  disorderly,  he  will  prudently 
delay  giving  any  such  direction,  in  order  not  unnecessarily  to  inter- 
ru])t  the  proceedings  of  the  house.  If,  however,  the  call  to  take 
do\vn  the  words  should  be  pretty  general,  the  speaker  will  certainly 
order  the  clerk  to  take  them  down,  in  the  form  and  manner  of  ex- 
pression, as  they  are  stated  by  the  member  who  makes  the  objec- 
tion to  them."  The  words  are  then  a  part  of  the  minutes  in  the 
clerk's  book ;  and  when  read  to  the  member  who  was  speaking,  he 
may  deny  that  those  were  the  words  he  spoke ;  and  if  he  does,  the 
house  must  decide  by  a  question,  whether  they  were  the  words  or 
not  ?  If  he  does  not  deny  that  he  spoke  those  words,  or  when  the 
house  has  itself  determined  what  the  words  were,  then  the  mem- 
ber may  either  justify  them,  or  explain  the  sense  in  which  he  used 
them,  so  as  to  remove  the  objection  of  their  being  disorderly ;  or 
he  may  make  an  apology  for  them.^ 

1770.  According  to  the  other  method  alluded  to,  the  member 
complaining  of  the  words  and  stating  them  as  before,  submits  a 
motion  that  they  be  taken  down,  on  which  the  speaker  may 
proceed  as  already  explained ;  or  the  motion  being  seconded  and 
debated,  is  put  to  the  question,  and  decided  in  the  ordinary  man- 
ner. "  K  one  member  only^''  says  Mr.  Addington,  "  moves  for  the 
words  of  any  other  member  to  be  taken  down,  it  cannot  be  done. 
But,  if  it  should  be  the  opinion  of  a  majority  of  the  house,  that  the 
words  ought  to  be  taken  down,  then  it  becomes  the  duty  of  that 
member  who  first  desired  the  words  to  be  taken  down,  to  state 
them  himself,  as  he  understood  them,  in  writing,  in  order  that  they 
may  be  fairly  submitted  to  the  house  in  the  form  of  a  motion. 
The  member  who  spoke  the  words,  has  a  right  to  peruse  them  when 
thus  put  into  writing,  and  to  state  what  he  apprehended  he  had 
actually  said,  if  he  differed  with  those  put  down.  He  had  also  a 
right  to  give  his  explanation  to  the  house ;  and,  if  there  was  a  dif- 

1  Pari.  Reg.  (2,)  XITT.  69. 

58 


386  LEGISLATIVE  ASSEMBLIES.  [PaRT   VL 

ference  in  the  opinion  of  members  respecting  the  words  spoken, 
and  those  put  down  in  writing,  it  then  becomes  a  question  for  the 
house  to  determine."  ^  K  the  member  denies  using  the  words 
written  down,  a  question  is  to  be  put  to  the  house,  whether  these 
were  the  words  used  or  not.  In  deciding  this  question,  no  debate 
or  amendment  can  be  allowed,  nor.  can  the  process  be  repeated.  If 
decided  in  the  negative,  there  is  of  course  no  further  question  of 
order  before  the  house.^ 

1771.  The  words  being  taken  do\ATQ,  and  the  member  himself 
admitting,  or  the  house,  on  question,  deciding  that  the  words  are 
truly  taken  down,  and  the  member  having  justified,  explained,  or 
apologized ;  if  the  member's  justification,  or  explanation,  or  apol- 
ogy, is  thought  sufficient  by  the  house,  no  further  proceeding  is 
necessary.  But  if  any  two  members  still  think  it  necessary  to  state 
a  question,  so  as  to  take  the  sense  of  the  house  upon  the  words, 
they  can  do  so  by  making  and  seconding  such  a  motion  as  they 
think  proper.  When  this  is  done,  the  member  must  withdraw  be- 
fore the  question  is  stated,  and  then  the  sense  of  the  house  must 
be  taken.  The  same  proceedings  take  place  when  the  member 
offers  no  justification,  apology,  or  explanation.^ 


Article  III.    As  to  subsequent  Proceedings. 

1772.  When,  in  consequence  of  a  member's  refusal  to  justify, 
apologize,  or  explain,  or  of  his  failing  to  do  so,  to  the  satisfaction 
of  the  house,  the  proceeding  has  assumed  the  character  of  a  per- 
sonal charge  against  him,  for  the  purpose  of  censure  or  punish- 
ment, it  comes  more  properly  under  another  part  of  this  treatise.^ 

1  Pari.  Reg.  XL  VI.  699.  *  The  proceedings  of  each  legislative  assem- 

s  Reg.  of  Deb.  XII.  Part  II.  2269.  biy,  in  this  country,  varying  more  or  less  from 

*  Hatsell,    IL    273,    note.      For    the    pro-  those  of  the  common  parliamentary  law,  aa 

ceedings  where  words  used  by  the  speaker  above  stated,  are  commonly  regulated  by  a 

are  compl;iined  of,  see  Comm.  .lour.  XXXII.  special  rule. 

707,  708,  the  case  of  Sir  Fletcher  Norton. 

See  also  the  Cavendish  Debates. 


Chap.  XIL]  members  present  in  debate.  687 


CHAPTER  TWELFTH. 

RULES  FOR   THE  CONDUCT  OF  MEMBERS   PRESENT   IN   THE   HOUSE 

DURING  A  DEBATE. 

1773.  The  rules  for  the  conduct  of  debate,  which  have  thus  far 
been  considered,  relate  to  members  addressing  the  house;  those 
which  remain  to  be  noticed,  relate  to  the  deportment  of  members 
present  in  the  house  during  a  debate,  but  not  engaged  therein. 
These  rules  require  the  members,  I.  To  keep  then-  places ;  H.  To 
enter  and  leave  the  house  with  decorum;  IH.  Not  to  cross  the 
house  irregularly ;  IV.  Not  to  read  books,  newspapers,  or  letters ; 
V.  To  maintain  silence  ;  VI.  Not  to  hiss  or  interrupt.^ 

1774.  I.  The  standing  order  of  the  lords  requires  them  "  to  keep 
their  dignity  and  order  in  sitting,  as  much  as  may  be,  and  not  to 
move  out  of  their  places  without  just  cause,  to  the  hinderance  of 
others  that  sit  near  them,  and  the  disorder  of  the  house  ;  but  when 
they  must  cross  the  house,  to  make  obeisance  to  the  cloth  of 
estate."  ^ 

1775.  In  the  commons,  also,  the  members  should  keep  their 
places,  and  not  walk  about  the  house,  or  stand  at  the  bar,  or  in  the 
passages.  If,  after  a  call  to  order,  members  who  are  standing  at 
the  bar  or  elsewhere,  do  not  disperse,  the  speaker  orders  them  to 
take  their  places.^ 

1776.  II.  In  the  lords,  a  member  entering  the  house,  "  is  to  give 
and  receive  salutations  from  the  rest,  and  not  to  sit  down  in  his 
place,  unless  he  hath  made  an  obeisance  to  the  cloth  of  estate."  ^ 

1777.  Members  of  the  commons  who  enter  or  leave  the  house 
during  a  debate,  must  be  uncovered,  and  should  make  an  obeisance 
to  the  chair,  while  passing  to  or  from  their  places.'' 

1778.  III.  In  the  lords,  the  order  already  mentioned  relates  in 
part  to  the  manner  of  crossing  the  house  ;  and  it  is  especially 
irregular  to  pass  in  front  of  a  peer  who  is  addressing  the  house.  In 
the  commons,  members  are  not  to  cross  between  the  chair  and  a 
member  who  is  speaking,  nor  between  the  chair  and  the  table,  nor 

1  Another  ancient  rule,  "that  no  member  *  Comm.  Jour.  XII.  496;  Same,  XIX.  426. 

do  take  tobacco,"  Mr.  Jlay  says  is  mnvorthy  *  Lords'  S.  0.  No.  15. 

of  a  place  in  the  text.    May,  269,  note  b.  *  C.  J.  VIII.  264. 

>  Lords'  S.  0.  No.  16. 


t 

688  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

beiAveen  the  chair  and  the  mace,  when  the  mace  is  taken  off  the 
table  by  the  sergeant.  When  members  cross  the  house,  or  other- 
wise leave  their  places,  they  should  make  obeisance  to  the  chair.^ 

1779.  IV.  Members  are  not  to  read  books,  newspapers,  or  let- 
ters in  their  places.  This  rule,  however,  must  now  be  understood 
with  some  limitation ;  for,  although  it  is  still  regarded  as  irregular 
to  read  newspapers,-  any  books  and  letters  may  be  referred  to,  by 
members  preparing  to  speak,  but  ought  not  to  be  read  for  amuse- 
ment, nor  for  business  unconnected  with  the  debate.^ 

1780.  V.  In  both  houses,  it  is  requked  of  members  to  observe 
silence.  In  the  lords,  it  is  ordered,  "  that  if  any  lord  have  occasion 
to  speak  with  another  lord  in  this  house,  while  the  house  is  sitting, 
they  are  to  go  together  below  the  bar,  or  else  the  speaker  is  to  stop 
the  business  in  agitation."  *  In  the  commons,  all  members  should 
be  silent,  or  should  converse  only  in  a  whisper.  Whenever  the 
conversation  is  so  loud  as  to  make  it  difficult  to  hear  the  debate, 
the  speaker  exerts  his  authority  to  restore  silence  by  repeated  cries 
of  "  order."  ^ 

1781.  VI.  Any  noise  or  disturbance,  as  by  hissing  or  other  inter- 
ruption while  a  member  is  speaking,  is  highly  disorderly.  In  the 
house  of  commons,  January  22,  1693,  the  following  rule,  which  is 
only  declaratory  of  the  order  of  the  house,  on  this  subject,  was 
adopted  as  a  standing  order :  —  "To  the  end  that  all  the  debates  in 
this  house  should  be  grave  and  orderly,  as  becomes  so  great  an  as- 
sembly, and  that  aU  interruptions  should  be  prevented,  be  it  ordered 
and  declared,  that  no  member'  of  this  house  do  presume  to  make  any 
noise  or  disturbance  whUst  any  member  shall  be  orderly  debating, 
or  whilst  any  bill,  order,  or  other  matter,  shall  be  in  reading  or 
opening;  and,  in  case  of  such  noise  or  disturbance,  that  Mr. 
Speaker  do  call  upon  the  member  by  name,  making  such  disturb- 
ance; and  that  every  such  person  shall  ^  incur  the  displeasure  and 
censure  of  the  house."  '^ 

1782.  The  foregoing  rules,  relating  to  the  observance  of  decorum, 
among  the  members  present  in  a  legislative  assembly,  though 
expressed  in  the  form  of  special  orders,  are  nevertheless  evidence 
of  the  common  parUamentary  law,  and  are  in  force  here  with  such 


1  May,  260.    This  rule,  however,  Mr.  May         *  Lords'  S.  0.  20. 
remarks,  is  not  observed,  when  a  member  is         ^  Comra.  Jour.  IL  135. 
speaking  from  the  third  or  any  higher  bench         »  Cong.  Globe,  XL  498. 
from  the  floor.  '  Coram.  Jour.  II.  66 ;  Same,  I.  162 ;  May, 

9  See  ante,  ^  1664.  22. 

»  May,  261 ;  Comm.  Jour.  IV.  61. 


Chap.  XIL]  members  present  in  debate.  689 

alterations  and  additions  as  may  be  found  necessary  in  each  assem- 
bly. The  regulations  relating  to  the  observance  of  decorum,  gen- 
erally, of  which  the  above  constitute  a  part,  have  aheady  been 
stated,  ^  and  are  commonly  established  in  the  rules  and  orders  of 
each  assembly. 

1  See  also  ante,  §  373. 

58- 


LAW  AND  PRACTICE 


LEGISLATIVE    ASSEMBLIES. 


PART    SIXTH. 

OF    THE    FORMS    AND    METHODS    OF    PROCEEDING    IN 
A    LEGISLATIVE    ASSEMBLY. 


THIRD    DIVISION. 

OF    ASCERTAINING    THE    SENSE    OF    THE    ASSEMBLY    IN 
REFERENCE    TO    ANY   QUESTION   BEFORE   IT. 


1783.  All  the  proceedings,  which  have  thus  far  been  described, 
have  only  had  for  then*  object  to  bring  a  proposition  into  a  form  to 
be  put  to  the  question ;  that  is,  a  form  in  which  the  sense,  will,  or 
judgment  of  the  house,  in  reference  to  the  subject  under  considera- 
tion, can  be  expressed  by  a  simple  affirmative  or  negative ;  it  being 
clear,  that  no  proposition  can  receive  the  consent  of  the  house,  or  of 
the  greater  number  of  the  members,  unless  it  is  in  such  a  form  as 
to  be  simply  affirmed  or  denied.  The  subject  of  this  division  is 
treated  of,  in  four  chapters,  namely :  L  Of  the  right  and  duty  of 
members  to  vote  ;  IL  Of  the  different  modes  of  taking  a  question  ; 
IIL  Of  the  question  thus  taken ;  IV.  Of  the  addition  or  disallow- 
ance of  votes. 

(C91) 


692  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI 


CHAPTER    FIRST. 

OF  THE  EIGHT  AND  DUTY  OF  MEMBERS  TO  VOTE. 

1784.  As  the  members  of  the  house  are  also  members  of  the 
body  pohtic,  and  connected  with  their  fellow-citizens  in  aU  the 
ordinary  relations  of  life  and  of  business,  it  may,  of  course,  some- 
times happen,  that  they  are  themselves  personally  interested  in  the 
questions  that  come  before  them  in  their  capacity  of  legislators. 
When  this  is  the  case,  decency  requires  that  members  so  situated 
should  not  sit  as  judges,  and,  by  their  suflfrages,  decide  their  own 
case ;  but  justice  also  requires,  that  their  interests  should  not  be 
compromised  vdthout  their  being  heard.  It  is  a  rule,  therefore,  that, 
when  a  member  is  personally  concerned  in  a  question,  —  either  as 
involving  his  character  and  conduct,  —  his  right  as  a  member,  or 
his  pecuniary  interest ;  he  is  first  to  be  heard  in  his  place,  if  he 
desires  it,  and  is  then  to  withdraw  from  the  house,  during  the 
debate  and  until  the  question  is  decided.^ 

1785.  The  precise  time  when  a  member  is  to  withdraw  is  not  in 
all  cases  the  same  ;  it  depends  entirely  upon  the  application  of  the 
principles  above  stated,  to  the  particular  circumstances  of  each 
case.  The  member  is  entitled  to  be  heard  ;  but  he  cannot  be  heard 
until  he  knows  what  is  alleged  against  him  ;  and  he  ought  at  all 
events  to  withdraw  before  the  debate  commences.  In  practice, 
therefore,  the  time  at  which  a  member  should  withdraw  is  deter- 
mined by  the  nature  of  the  subject-matter  in  which  he  is  concerned, 
or  of  the  charge  against  him.  When  this  is  contained  in,  or 
founded  upon,  reports,  petitions,  or  other  documents,  or  words 
spoken  and  taken  down,  which  sufficiently  explain  the  charge 
against  the  member,  or  the  subject  in  which  he  is  personally  inter- 
ested, it  is  usual  to  have  such  paper  read,  and  for  the  member  to 
be  heard  in  his  place,  and  then  to  withdraw  before  any  queslion  is 
proposed.'-^  But  if  the  charge  or  subject-matter  is  only  contained 
in  the  question  itself,  the  member  is  entitled  to  have  the  question 
proposed,  and  is  then  to  be  heard,  and  to  withdraw  after  the  ques- 
tion has  been  proposed,  and  before  the  debate,  properly  speaking, 
has  commenced.'^ 

*  See  also   ante,  §  656,  as  to  preliminary         2  Hatsell,  IT.  170,  171,  note. 
Vid  collateral  questions.  *  May,  264,  265. 


Chap.  L]         right  and  duty  of  members  to  vote.  693 

1786.  It  does  not  seem  sufficient,  however,  that  there  should 
have  merely  been  some  report,  or  some  other  proceeding  in  the 
house,  in  order  that  a  member  should  be  heard  upon  the  same,  and 
then  withdraw;  the  rule  appears  to  apply  only  to  the  case  of  a 
report,  or  other  previous  proceeding,  which  contain  a  direct  and 
pointed  accusation.^ 

1787.  Where  the  charge  against  a  member  is  one,  in  reference 
to  which  witnesses  are  examined,  —  as,  for  example,  where  articles 
of  impeachment  are  exhibited  against  a  member,  and  witnesses  are 
thereupon  examined,  —  the  member  is  to  be  heard  in  his  place,  and 
withdraw  after  the  examination  of  the  witnesses.'-^ 

1788.  If  a  member  should  neglect  or  refuse  to  withdraw  at  the 
proper  time,  the  house  will  order  him  to  withdraw.  Thus,  in  the 
lords.  Lord  Pierpoint,  in  1641,  and  Lord  Herbert  of  Cherbury,  in 
1643,  were  commanded  to  withdraw  ;  and,  in  the  commons,  in  1715, 
it  was  ordered,  upon  question  and  division,  "  that  Sir  Wm.  Wynd- 
ham  do  now  withdraw."  ^ 

1789.  The  duty  of  the  members  of  our  legislative  assembUes  to 
vote  in  all  questions  that  may  arise  therein,  is  commonly  expressed 
by  a  rule  in  affirmance  of  the  common  parliamentary  law,  and  an- 
other rule  providing  "  that  no  member  shall  vote  on  any  question 
in  the  event  of  which  he  is  immediately  and  particularly  interested," 
and  sometimes  it  is  added,  "distinct  from  the  public  interest." 
Concerning  the  rule,  as  thus  expressed,  and  its  practical  application, 
three  remarks  are  to  be  made :  firstj  that  it  does  not  change  the 
rule  of  the  common  parliamentary  law,  as  above  laid  down,  but 
merely  confines  the  interest  in  the  question  which  excludes  from  the 
right  of  voting  to  pecuniary ;  second,  it  provides  no  means,  any 
more  than  the  common  parUamentary  law,  of  enforcing  its  own 
execution,  and,  notwithstanding  the  rule,  members  may  vote  or 
not,  as  they  please  ;  "*  and  third,  it  does  not  apply  to  merely  preUmi- 
nary  or  incidental  questions,  on  which  interested  members  are 
allowed  to  vote.^ 

1790.  If  a  member,  whose  duty  it  is  to  withdraw,  should  not- 
withstanding be  suffered  to  remain  in  the  house,  and  to  vote  on 
the  question,  either  from  inadvertence,  or  because  his  interest  in  it 
is  not  known  or  pointed  out,  his  vote  may  be  disallowed  by  the 
house,  on  a  motion  made  and  question  proposed  for  that  purpose , 
and,  in  such  a  case,  the  question  on  the  motion  to  disallow  the 

1  Hatsell,  n.  172,  note.  *  Cong.  Globe,  XX.  84. 

s  HatseU,  IV.  260,  and  note.  *  J.  of  H.  27th  Cong.  1st  Sess.  1283;  Cong. 

»  May,  265.  Globe,  VIU.  631. 


694  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI. 

vote,  is  within  the  rule  requiring  a  member  to  withdraw.^  The 
member  should  withdraw,  in  such  a  case,  before  the  question  is 
proposed.- 

1791.  In  determining  whether  a  member  is  so  personally  con- 
cerned in  a  question  as  to  make  it  necessary  for  him  to  withdraw, 
there  can  be  little  or  no  difficulty  in  cases  where  his  character  or 
conduct  is  involved,  or  where  his  right  to  his  seat  is  concerned. 
But,  in  cases  of  a  supposed  pecuniary  interest,  —  though  the  rule 
is  sufficiently  plain,  —  its  application  in  particular  cases  is  often 
attended  with  great  difficulty.  The  rule  is  thus  stated  by  Mr.  Hat- 
seU :  "  Interest  in  a  question  pending  in  the  house,  is  good  cause 
for  disallowing  a  vote ;  but  such  an  interest  must  be  a  direct  pecu- 
niary interest,  belonging  to  a  separate  description  of  individuals, 
and  not  such  as  also  belongs  to  aU  the  citizens,  arising  out  of  any 
measure  of  state  policy.  Generally  speaking,  it  applies  only  to 
private  bills,  or  bills  relating  to  individuals,  such  as  estate  bills,  in- 
closure  biUs,  canals,  joint-stock  companies,  &c.,  wherein  only  the 
individual  profit  or  loss  is  concerned,  and,  on  like  grounds  to  sub- 
scribers to  the  loyalty  loan ;  but  does  not  apply  to  questions  of 
interest  arising  out  of  public  measures,  such  as  tax  bills,  colonial 
regulations,  domestic  trades,  and  the  like."  ^  Questions  of  interest 
are  further  considered  in  the  fourth  chapter  of  this  division,  in  which 
the  subject  of  the  allowance  or  disallowance  of  votes  is  treated  of. 


CHAPTER    SECOND. 

OF  THE  DIFFERENT  MODES   OF  TAKING  A   QUESTION. 

1792.  In  order  that  any  proposition  may  become  the  act,  or 
express  the  sense,  judgment,  opinion,  or  wWl  of  the  house,  it  is 
necessary  that  it  should  receive  the  assent  of  a  majority  of  the 
members,  or  of  such  other  number  as  may  be  agreed  upon,  or 
otherwise  jfixed,  beforehand ;  wliich  may  be  manifested  in  two 
ways,  namely,  either  by  no  one  objecting  to  the  proposition,  —  in 
which  case,  the  sense  of  the  house  is  ascertained  by  their  common 

1  Hatsell,  n.  169,  note.  »  Hatsell,  II.  169,  note.    See  May,  281 

2  May,    284;     Comm.   Jour.  LXXX.   110; 
Same,  XCI.  271. 


Chap.  II.]  taking  the  question  by  consent.  695 

consont,  —  "the  thing  beinj^  sufTiciontly  declared  when  no  man 
contradicts  it ;  "  ^  or  by  a  majority,  or  the  requisite  number,  of  the 
members  declaring  themselves  in  its  favor ;  in  which  case,  the 
sense  of  the  house  is  ascertained  by  a  question  put  and  determined. 
Where  the  sense  of  the  house  is  ascertained  by  taking  a  question, 
the  course  is,  in  the  first  instance,  for  the  members  to  answer  aye  or 
no  ;  and  the  speaker  to  decide,  by  his  ear,  which  side  is  the  greater. 
If  his  decision  is  not  satisfactory,  then  measures  are  to  be  taken, 
by  means  of  dividing  the  house,  to  ascertain  the  exact  number  on 
each  side.  Hence,  in  parliament,  there  are  three  modes  of  ascer- 
taining the  sense  of  the  house,  in  reference  to  any  proposition  sub- 
mitted to  it,  namely,  by  consent^  by  the  voices,  and  by  a  division. 
These  several  modes  of  proceeding,  as  they  are  practised  in  the 
house  of  commons,  with  the  points  of  difference  between  them 
and  the  analogous  proceedings  in  the  lords,  will  be  stated.  The 
foregoing  being  in  use  here,  with  some  other  methods. and  usages 
which  are  peculiar  to  this  country,  the  latter  will  be  treated  of 
separately.^ 

Section  L    Of  taking  the   Sense  of  the  House  by  their 

COMMON  Consent. 

1793.  When  this  mode  is  adopted,  the  question  is  not  put  io' 
those  who  are  on  the  one  side  or  on  the  other  to  declare  themselves, 
but  simply.  Is  it  the  pleasure  of  the  house  that  such  a  thing  should 
be  done  ?  And  if  no  member  dissents,  then  the  thing  is  ordered, 
without  putting  the  question  in  any  other  form.  If,  in  any  such 
case,  objection  should  be  made,  even  by  a  single  member,  the  ques- 
tion should  be  put  in  the  usual  form ;  and  perhaps  it  might  be 
proper  in  some  cases,  where  no  motion  had  in  fact  been  made,  for 
the  speaker  to  require  one  to  be  regularly  made  and  seconded,  be- 
fore putting  the  question.  This  mode  of  taking  the  question  is 
exclusively  adopted  where  the  affirmative  requires  the  unanimous 
assent  of  the  members  present ;  in  which  case,  the  objection  of  a 
single  member  is  as  effectual  to  defeat  a  proposition,  as  the  vote  of 
a  majority  on  ordinary  occasions.  But  in  this  case,  the  objection 
must  be  made  with  the  same  formality  as  a  motion ;  and  can  only 
be  withdi-awn  in  the  same  manner.     It  is  scarcely  necessary  to 

>  Grey,  V.  129.  alluded  to  in  connection  with  the  practical 

«  The  dilTerent  raodes  of  taking  a  question,  questions  to   which    their  application  gives 

which   have  already  been  mentioned  in    the  ,  ri^e.     The  parap-aphs  in  which  these  mode* 

lecoud  part,  (ante,  §  382  to  411,)  are  here  again  are  described  are  refcn-ed  to. 


696  LEGISLATIVE    ASSEMBLIES.  [PaRT   VI 

observe,  that  where  a  question  is  taken  in  this  manner,  objection 
must  be  made,  if  at  all,  when  the  question  is  put ;  and  that  if  made 
afterwards,  especially  if  the  supposed  vote  has  aheady  been  acted 
upon,  or  the  assembly  has  passed  to  any  new  business,  it  will  then 
come  too  late. 


Section  II.    Of  taking  the  Sense  of  the  House  by  the  Voices. 

1794.  This  mode  is  commonly  practised  where  a  motion  is  regu- 
larly made  and  seconded,  and  proposed  from  the  chair  as  a  ques- 
tion ;  and  is  invariably  resorted  to,  where  the  question  has  given 
rise  to  debate.  In  the  latter  case,  when  the  debate  is  closed, 
which  is  kno\\Ti  by  members  ceasing  to  rise,  or  by  cries  of  ques- 
tion, or  in  some  other,  and  perhaps  more  irregular,  manner,  as  weU 
as  when  no  debate  has  taken  place,  it  is  the  duty  of  the  speaker 
to  put  the  question  to  the  house  for  its  determination ;  which  is 
done  in  the  manner  already  described.^  Sometimes  the  speaker, 
not  being  able  to  decide  as  to  the  majority,  by  the  sound  of  the 
voices,  puts  the  question  a  second,  or  even  a  third  time,  before  de- 
claring his  opinion.  The  question  is  stated,  or  intended  to  be,  dis- 
tinctly by  the  speaker ;  but,  in  case  it  should  not  be  heard,  it  may 
be  stated  again.  The  decision  of  the  speaker  is  the  judgment  of 
the  house,  and  will  stand  as  such,  unless  upon  a  division,  (which 
wiU  be  presently  described,)  and  an  enumeration  of  the  numbers 
on  each  side,  it  should  be  ascertained  that  he  was  mistaken  in  his 
opinion. 

1795.  When  the  question  is  put,  all  those  members,  and  they 
only  who  are  then  properly  in  the  house,  are  allowed  and  may  be 
compelled  to  vote ;  every  member  thus  present,  is  supposed  to  give 
his  voice  on  the  one  side  or  the  other ;  and  the  subsequent  proceed- 
ings, in  dividing  the  house  and  numbering  those  who  vote  on 
either  side,  take  place  for  the  sole  purpose  of  ascertaining  what 
members  thus  gave,  and  the  manner  in  which  they  gave,  their 
voices.  The  voice  which  a  member  gives,  is  his  vote ;  so,  that  if  a 
member  gives  his  voice  with  the  ayes,  and,  on  a  division,  goes  with 
the  noes,  and  this  fact  is  brought  to  the  notice  of  the  speaker,  he 
wiU  direct  the  member's  vote  to  be  counted  with  the  ayes.  But 
where  a  member  answers  with  one  party,  in  confusion  or  through 
mistake,  when  he  intends  to  vote  wdth  the  other,  he  has  a  right  to 
retract  any  such  declaration  erroneously  made,  and  to  divide  and 

1  See  ante,  ^  384,  885. 


Chap,  IL]        taking  the  question  by  the  voices.  697 

be  counted  with  the  side  with  which  he  intended  to  answer  in  the 
first  place.'  The  point  of  time  to  which  all  the  proceedings  refer, 
which  take  place  for  the  purpose  of  ascertaining  the  number  of 
members  voting  on  each  side,  being  the  putting  of  the  question  in 
the  manner  described,  it  seems  important  before  proceeding  to 
describe  the  process  of  division,  to  define  the  Umits  of  what  is 
technically  called  "  the  house,"  in  order  to  determine  what  members 
are  in  the  house  at  the  time  the  question  is  put.  As  to  the  oiher 
qualification  of  the  right  to  vote,  namely,  being  rightfully  in  the 
house,  it  is  sufficient  to  say,  that  all  the  members  present,  and  not 
under  obligation  to  withdraw,  on  the  ground  of  being  personally 
,  concerned  in  the  question,  are  rightfully  present,  and  may  vote 
whether  they  have  been  present  at  the  debate  or  not,  and  even  if 
they  have  but  just  come  in  before  the  question  is  put. 

1796.  For  the  purpose  of  determining  upon  the  right  of  mem- 
ber^  to  vote,  the  house  consists  of  the  room  or  chamber,  in  which 
the  members  sit  with  the  speaker  in  the  chair,  the  clerk  at  the 
table,  and  the  other  officers  attending,  for  the  transaction  of  the 
business  of  parliament,  and  which  is  technically  denominated  "  the 
house,"  or  '"the  body  of  the  house,"  together  with  all  the  rooms, 
places,  and  passages  adjacent  thereto,  and  to  which  there  is  no 
other  avenue  than  through  the  house.  Mr.  HatseU,  in  allusion  to 
the  chamber  of  the  house  of  commons,  as  it  existed  in  his  time, 
speaks  of  a  place  called  Solomon's  porch,  and  a  room  called  the 
speaker's  room,  or  the  speaker's  little  chamber,  and  of  the  galleries, 
as  within  the  house,  there  being  no  access  to  them  but  through  the 
house  ;  and  of  a  room  called  the  speaker's  chamber,  and  of  the 
lobby,  as  not  being  within  the  house,  they  being  accessible  from 
without  as  well  as  connected  with  the  house.  According  to  Mr. 
Hatsell,  members  who  were  in  Solomon's  porch,  or  the  speaker's 
room,  were  in  the  house  ;  those  who  were  in  the  lobby,-  or  in  the 
speaker's  chamber,^  were  not. 

1797.  K  the  speaker,  being  doubtful  of  the  majority  of  the 
voices,  puts  the  question  a  second  time,  before  declaring  his  opin- 
ion, a  member  who  comes  into  the  house  between  the  first  and 
second  putting  of  the  question,  is  not  deemed  to  be  wdthin  the 
house  at  the  putting  of  the  question,  and  is  not  entitled  to  vote  ;  * 
this  proceeding  being  nothing  more  than  a  measure  adopted  by  the 
speaker  to  enable  him  to  determine  (not  the  question,  for  that  haa 

1  Hans.  (1),  XXXVH.  1107.  «  Hatsell,  U.  isr,  note. 

>  May,  268.  *  Hatsell,  H.  1ST. 

59 


693  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI, 

already,  in  fact,  been  determined,  but)  in  what  manner  the  voices 
were  given,  when  the  question  was  first  put. 

Section  III.     Of  taeing  the  Sense  of  the  House  by  a 

Division. 

1798.  The  house  may  acquiesce  in  the  opinion  of  the  speaker, 
that  the  ayes  have  it,  or  the  noes  have  it,  in  which  case  the  ques- 
tion is  said  to  be  resolved  in  the  affirmative  or  negative,  as  the  case 
may  be,  according  to  the  supposed  majority  on  either  side ;  but  it 
is  the  right  of  any  one  member  to  dispute  the  fact,  and  to  have  a 
division  of  the  house,  provided  he  demands  it  within  the  proper " 
time,  that  is,  before  any  new  motion  is  made,  or  other  parliament- 
ary proceeding  commenced,  or  any  member,  not  in  the  house  when 
the  question  was  put,  has  come  in,i  in  either  of  which  cases  it  is 
too  late  to  have  a  division ;  and  provided  also  that  voices  were 
given  on  both  sides;  for  it  is  not  competent  for  the  party,  with 
whom  the  speaker  declares,  to  dispute  his  decision,  and  if  there  are 
no  voices  on  the  other  side,  there  is,  in  fact,  no  other  party  to  the 
question.^ 

1799.  If  any  member,  therefore,  after  the  speaker  has  declared 
that,  in  his  opinion,  the  ayes  or  the  noes  have  it,  as  the  case  may 
be,  stands  up  and  declares  that  he  doth  believe  that  the  ayes  or  the 
noes  have  it,  contrary  to  the  speaker's  opinion,  then  the  speaker  is 
to  give  direction  for  the  house  to  divide.  This  is  the  formal  mode ; 
but  a  division  sometimes  also  takes  place  upon  the  irregular  call  of 
several  members  at  once,  that  the  ayes  or  the  noes  have  it  contrary 
to  the  speaker's  decision.^  When  a  division  has  been  called  for,  it 
must  go  on,  provided  two  members  can  be  found  for  tellers  on  each 
side,  unless  all  the  members  agree  to  waive  it  before  any  go  forth.* 

1800.  When  a  division  is  demanded,  all  the  members,  who  were 
in  the  house,  when  the  question  was  put  upon  which  the  voices 
were  given  are  not  only  permitted  but  compellable  to  vote,  and, 
consequently,  are  not  at  liberty  to  withdraw  from  the  house  ;  ■'  and, 
on  the  other  hand,  no  members,  who  were  not  then  in  the  house, 
can  be  permitted  to  vote,  or  to  enter  the  house  for  that  purpose.^ 
As  soon,  therefore,  as  a  division  is  ordered,  the  speaker  immedi- 
ately gives  directions  to  the  sergeant-at-arms,  to  clear  the  house  of 

1  By  Mr.  Onslow,  Hatsell,  11.  194,  note.  <  Hatsell,  IL  194,  note. 

a  Hans.  (3),  XVII.  194.  6  Hatsell,  11.  196,.note;   Same,  195. 

3  May,  224.  '  Hatsell,  H.  177,  note. 


Chap.  IL]        taking  the  question  by  a  DmsioN.  699 

strangers,  and  to  shut  the  doors.^  It  is  the  established  practice,  that 
strangers  must  be  withdrawn  before  a  division  can  take  place, 
thougli  the  question  may  be  put  and  the  voices  given,  while  they 
are  present. 

1801.  The  speaker  then  appoints  two  members,  on  each  side,  as 
tellers,  to  count  the  house ;  -  but,  if,  on  naming  the  tellers,  it  ap- 
pears that  there  is  but  one  member  on  one  side  of  the  question, 
and  consequently,  that  two  tellers  cannot  be  appointed  on  Ihat 
side,  the  division  cannot  go  on,  and  the  speaker  declares  on  the 
other  side.^  If  there  are  two  tellers,  the  division  must  go  on  and  be 
reported  though  on  one  side  the  return  of  the  members  should  be 
none.* 

1802.  The  tellers  being  appointed,  the  speaker  directs  the  house 
to  divide,  which  is  effected  in  the  manner  described  in  the  second 
part.'"'. 

1803.  It  is  a  part  of  the  duty  of  the  tellers  to  see  that  every 
member  votes,  in  the  division,  who  was  in  the  house  when  the 
question  was  originally  put,  and  to  prevent  any  member  from  vot- 
ing, who  was  not  then  in  the  house.  If,  therefore,  they  discover 
any  members,  in  the  places  and  passages,  within  the  house,  but 
not  within  the  body  of  the  house,  who  do  not  retire  with  the  mem- 
bers, it  is  their  duty  to  bring  such  members  forward,  and  to  compel 
them  to  vote.  Such  members  if  they  were  not  in  the  body  of  the 
house,  or  in  the  gallery  Avhen  the  question  was  put,  are  entitled 
to  have  the  question  stated  to  them,''  and  are  then  inquired  of  by 
the  speaker  on  which  side  they  vote  ;  whereupon  they  answer  with 
the  ayes  or  the  noes,  and  are  then  directed  to  withdraw  into  the 
lobby  appropriated  to  the  side  on  which  they  vote.  Members  who 
are  in  the  body  of  the  house,  or  in  the  gallery,  when  the  question  is 
put,  are  not  entitled  to  have  it  stated  to  them.^  At  the  time,  when 
the  division  was  effected  by  one  party's  remaining  in  the  house,  and 


1  Hatsell,  II.  200,  note.  (J.  of  H.  IX.  139 ;  Same,  27th  Cong.  1st  Sess. 

s  Hatscll,  II.  239;  Scobell,  26,  27.  477;)  among  the  nays,  if  they  voted  at  all. 

'  Ilatsell,   II.   2fil.     This  principle,  -which  the  movers  must  have  been  included, 

may  exist  where  the  question  is  taken  by  *  Hatsell,  11. 199,  200,  201.  If  all,  that  intend 

tellers,  cannot,  of  course,  prevail,  where  the  to  go  forth,  go  out  before  the  speaker  appoints 

question  is  taken  by  yeas  and  nays.     On  two  tellers  for  that  side,  he  must  call  for  two  of 

occasions,  in  the  lower  house  of  congress,  it  them  to  come  back  into  the  house  to  be  tellers; 

is  recorded,  that  there  was  only  one  in  the  and  so  also  if  the  door  be  shut.    The  like  for 

nffirm;itive,  (J.  of  H.  VII.  89,  353) ;  and  in  one  teller,  if  only  one  teller  has  been  before 

one  of  them,  (J.  of  H.  VII.  353),  that  the  appointed.    Hatsell,  II.  200,  note, 

mover  voted  in  the  negative.     On  two  occa-  *  See  ante,  ^  390,  391. 

Bions,  in  tlie  same  assembly,  it  is  recorded,  •  Hatsell,  II.  187,  note, 

that  the  vote  was  unanimously  in  the  negative,  '  Hatsell,  IT.  195,  note. 


700  LEGISLATIVE  ASSEMBLIES.  [PaRT    VL 

the  other  going  into  the  lobby,  members  who  were  in  the  body  of 
the  house,  or  in  the  gallery,  when  the  question  was  put,  and  from 
inattention,  or  any  other  ch-cumstance,  neglected  to  go  forth,  until 
after  the  door  was  shut,  had  no  option  where  they  would  be  told ; 
but  were  obhged  to  be  told  with  the  party  who  remained  in  the 
house,  although  they  were  thus  made  to  vote  contrary  to  their 
known  and  avowed  inclination.^  In  regard  to  others,  who  were 
not  in  the  body  of  the  house,  or  in  the  gaUery,  but  in  some  of  the 
adjacent  passages  or  rooms,^  they  were  entitled  to  have  the  ques- 
tion stated  to  them,  as  above  mentioned,  and  to  go  out  or  remain 
as  they  pleased.'^  Since  the  adoption  of  the  new  mode  of  dividing, 
all  who  come  forward  or  are  compelled  to  vote,  after  the  members 
have  withdrawn,  must,  of  necessity,  withdraw  into  which  of  the 
lobbies  they  please. 

1804.  It  seems,  that  when  the  mere  statement  of  the  formal 
question  would  not  be  sufficient  to  inform  the  member  of  what  the 
question  in  fact  M^as,  —  as,  for  example,  when  it  relates  to  some 
paper  or  document,  —  in  such  case,  the  member  may  also  demand 
to  have  that  paper  read  to  him,  before  he  can  be  compelled  to  vote 
upon  it,  if  he  has  not  already  heard  it  read  ;  or  he  may  be  inquired 
of  by  the  speaker,  whether  he  has  heard  that  paper  read  ;  and  if  he 
answers  that  he  has  not,  that  then  it  must  be  read  to  him  before 
he  is  asked  how  he  votes  on  the  question.  Thus,  where  on  the 
question  that  a  petition  be  rejected,  the  tellers  brought  forward  a 
member  to  vote,  who,  on  having  the  question  stated  to  him,  said  he 
voted  for  the  rejection  of  the  petition,  and  the  speaker  was  there- 
upon requested  to  ask  him  whether  he  had  heard  the  petition  read, 
and  the  member  objected,  the  speaker  (Mr.  Abbott)  declared  that 
it  must  be  answered,  and  put  it  to  him  accordingly,  the  member 
answering  that  he  had  not  heard  it,  it  was  read  to  him,  and  he  per- 
sisted in  his  vote.* 

1805.  When  both  parties  have  returned  into  the  house,  and  have 
been  told,  the  tellers  on  either  side  come  up  to  the  table  and  report 
the  numbers  to  the  speaker,  in  the  manner  already  stated  '^  in  a 
preceding  part. 

1806.  It  is  the  duty  of  the  speaker  to  vote  only  when  the  num- 
bers are  equal ;  and  he  is  not  permitted  to  vote  at  any  other  time, 
except  when  the  house  is  in  committee  of  the  whoje  ;    in  which 


1  Hatsell,  XL  195,  note.  «  Hatsell,  II.  196. 

*  As  in  the  speaker's  room,  or  Solomon's         *  Hans.  (1),  XXXV.  316. 
Porch,  Hatsell,  II.  196.  See  ante,  §  392. 


Chap.  II.]         taking  the  question  by  a  division.  701 

case,  he  votes  with  the  other  members^  and  the  chairman  gives  the 
casting  vote.  In  the  performance  of  this  duty,  the  speaker  or 
chairman  is  at  liberty  to  vote,  like  any  other  member,  according  to 
his  conscience,  and  without  assigning  a  reason ;  but,  in  order  to 
avoid  the  least  imputation  upon  his  impartiality,  it  is  usual  for  him, 
when  practicable,  to  vote  in  such  a  manner  as  will  not  make  the 
decision  of  the  house  final,  and  at  the  same  time,  to  explain  his 
reasons,  which  are  entered  on  the  journals.^ 

1807.  When  a  division  takes  place  in  the  house,-  and  the  tellers 
are  counting  the  mcmbeis,  it  is  the  duty  of  the  latter  to  maintain 
perfect  silence,  in  order  that  the  tellers  may  not  be  interrupted  ;  for, 
if  there  is  any  mistake  made,  or  the  tellers  are  not  agreed,  they 
must  begin  and  tell  again.  For  the  same  reason,  no  member 
should  remove  from  his  place,  w^hen  they  have  begun  telling ;  nor 
can  any  member  be  counted  standing  or  sitting  on  the  steps,  or  in 
the  passage  ways,  or  in  the  area  in  front  of  the  chair,  but  only  in 
his  seat.3  If,  in  announcing  the  numbers  to  the  speaker,  there 
should  be  any  mistake,  it  may  be  corrected  by  the  tellers,  if  they 
are  agreed. 

1808.  If  the  tellers  should  be  unable  to  agree  upon  the  numbers ;  ^ 
or  if  any  mistake  should  occur,  which  the  tellers  could  not  coiTect ; 
or  if  any  irregularity  should  be  discovered,  as,  for  example,  that  a 
stranger  had  divided  and  been  counted  wijh  the  members  on  one 
side;''  there  is  no  alternative  but  another  division,  if  any  mem- 
ber demands  it.'^  If  members  vote,  who  are  not  entitled  to  do  so, 
either  because  they  are  not  in  the  house,  when  the  question  is  put, 
or  because  they  are  personally  concerned  in  the  question,  their  votes 
may  be  disallowed  afterwards,  and  the  numbers  corrected  accord- 
ingly. K  members,  who  are  entitled  to  vote,  are  prevented  from 
doing  so,  by  the  decision  of  the  speaker,  it  is  presumed  that  his 
decision  in  this  respect  may  be  revised,  and  the  votes  of  such  mem- 
bers allowed. 


1  May,  275.    Mr.  Speaker  Seymour,  giving  speaker  declared  himself  with  the  ayes,  on 

his  casting  vote  with  the  ayes  on  a  question  the  ground,  that  the  original  question  was  thea 

of   adjournment,  "jestingly   said,   he   would  fit  to   be  submitted   to  the   house.     Comm. 

have  his  reasons  for  his  judgment  recorded,  Jour.  LX.  202. 

namely,  because  he  was  very  hungry."     Grey,  "  The  mode  of  dividing,  when  the  house  is 

II.  177.     The  most  remarkable  occasion,  per-  in  a  committee  of  the  whole,  has  been  already 

haps,  on  which  a  speaker's  casting  voice  was  sufficiently  described.    (See  ante,  §400.)     It 

ever  given,   was  when  Mr.  Speaker  Abbott  gives  rise  to  no  peculiar  questions, 

gave  his  vote  for  the  impeachment  of  Lord  *  Hatsell,  II.  198. 

Melville,  on  the  8th  of  April,  1805.     The  pre-  *  May,  275;  Hatsell,  II.  ?.01. 

vious  question  having  been  moved,  and  the  *  Pari.  Deb.  VI.  58. 

Qumbers  on    the    division    being  equal,  the  *  Pari.  Deb.  VI.  58. 

59* 


702  LEGISLATIVE  ASSEMBLIES.  [PaRT  VI 

1809.  If  any  question  arises,  in  point  of  order,  during  a  division, 
and  before  the  numbers  are  declared  by  tlie  speaker,^  the  speakei 
must  take  upon  himself  to  decide  it  "  peremptorily ; "  for  as  it  can- 
not be  decided  by  the  house,  without  having  a  division  upon  a 
division,  there  is  no  other  practical  way  of  settUng  the  question^ 
without  great  delay  and  inconvenience  ;  and,  in  such  a  case,  there- 
fore, the  determination  of  the  speaker  must  be  implicitly  submitted 
to,  until  the  division  is  over  and  the  result  declared.  The  decision 
may  then  be  revised  by  the  house,  and,  if  irregular  or  partial,  may 
be  corrected  either  by  altering  the  numbers,  or  by  a  new  division 
Thus,  where  a  division  had  taken  place,  and  the  tellers  had  reported 
the  numbers  sixty-four  to  twelve,  notice  was  then  taken  by  a  mem- 
ber, that  a  particular  member  was  not  in  the  house  when  the 
question  was  put ;  the  speaker  thereupon  inquired  of  the  member 
alluded  to,  "  whether  he  was  in  the  house  and  heard  the  question 
put  ?  "  The  member  answered  that  he  was  in  the  speaker's  cham- 
ber ;  upon  which  the  speaker  said  that  his  vote  must  be  disallowed, 
and  immediately  reported  the  numbers  sixty-four  to  eleven.^  So, 
where  a  division  having  taken  place,  objection  was  made  to  the 
numbers  reported  by  the  tellers,  on  the  ground,  that  certain  mem- 
bers, who  voted  with  the  ayes,  were  personally  interested ;  but  it 
was  decided  that  they  were  not  so  interested  as  to  preclude  them 
from  voting  for  the  repeal  of  a  public  act,  and  the  question  was 
thereupon  declared  to  be  resolved  in  the  affirmative.'^ 

1810.  It  is  the  duty  of  the  speaker,  also,  to  give  all  directions 
that  may  be  necessary,  for  conducting  the  proceedings  on  a  divis- 
ion, in  a  proper  manner,^  as  well  as  to  decide  all  points  of  order 
that  may  arise.^  Thus,  where,  on  occasion  of  a  division,  and  whUst 
strangers  were  withdrawing  from  the  gallery,  several  members 
came  in  from  the  rooms  above  stairs ;  and  the  irregularity  being 
taken  notice  of  by  the  tellers,  and  complaint  made  to  the  speaker; 
the  speaker,  though  the  division  was  actually  made,  and  the 
members  who  were  to  go  out  were  withdrawn  into  the  lobby, 
ordered  them  all  to  come  back  into  the  house,  and  then  stated, 
what  he  apprehended  to  be  the  rule  of  the  house,  namely,  that  such 
members  as  were  not  present  in  the  house,  and  did  not  hear  the 


1  Hans.  Pari.  Hist.  IH.  48,  49;    Hans.  (1),  his  name   was   thereupon   erased  by  unani- 

XXXV.  316.  mous  consent.     ConK.  Globe,  IV.  217. 

=*  Hatsell,  n.  187,  note.     So,  when   notice  ^  Comra.  Jour.  LXIX.  455. 

was  taken,  that  a  certain    member,  whose  *  See  a  most  remarkable  instance,  Comnu 

name  was  recorded  in   the  affirmative,  was  Jour.  XXXVII.  901. 

not  in  the  house  when  the  question  was  taken,  ^  Hatsell,  II.  195,  note. 


Chap.  II.]         taking  the  question  by  a  division.  703 

question  put,  had  no  right  to  vote  ;  thereupon,  after  a  conversation 
on  the  suliject,  the  speaker  stated  the  rule  again,  and  all  the  mem- 
bers, who  were  under  the  predicament  described,  withdrew ;  and 
the  division  went  on,  without  counting  those  members  who  had 
come  down  from  above  8tair^5.^  So,  where,  after  the  house  had 
been  cleared,  and  the  doors  closed,  three  members  forced  1he  door 
and  entered  the  house  a  second  time,  after  having  been  directed  to 
withdraw,  the  speaker  gave  peremptory  orders  to  the  sergeant-at- 
arms  to  exclude  them  from  Ihe  house.^ 

1811.  For  the  purpose  of  forming  a  determination  upon  ques- 
tions arising  in  the  course  of  a  division,-^  in  reference  to  which  there 
cannot  be  any  debate,  the  speaker  or  other  presiding  officer  allows 
members  to  express  their  opinions  sitting  in  their  seats,  with  their 
hats  on,  to  avoid  even  the  appearance  of  debate ;  but  this  cannot 
be  done  without  the  speaker's  leave,  and  must  cease  at  his 
pleasure.^ 

1812.  When,  in  the  course  of  a  division,  a  question  arises  as  to 
the  right  or  duty  of  a  member  to  vote,  depending  on  the  fact  of  his 
being  in  the  house  or  not,  when  the  question  was  put,  the  practice 
is  for  the  speaker  to  inquire  of  the  member  whether  he  was  present 
in  the  house  when  the  question  was  put  ?  If  he  answers  that  he 
was,  the  speaker  directs  him  to  vote  ;  if  he  answers  that  he  was 
not,  the  speaker  declares  that  he  cannot  vote  ;  if  the  member 
answers  specially  as  to  the  precise  place  where  he  was,  when  the 
question  was  put,  the  speaker  decides  that  he  has  or  has  not  a  right 
to  vote,  according  to  the  speaker's  judgment  as  to  whether  the 
place  specially  designated  by  the  member,  is  or  is  not  within  the 
house.^ 

1813.  If,  on  a  division,  members  should  mistake  the  question, 
and  divide  on  the  ^\Tong  side  ;  or,  if  the  tellers,  through  mistake  or 
design,  should  misrepresent  the  numbers  ;  and  the  sense  of  the 
house  is  thereupon  regularly  declared  ;  —  it  seems,  as  laid  down  by 
Lord  Mansfield,  that  the  matter  cannot  be  put  right,  and  the  de- 
clared sense  of  the  house  set  aside.*^  The  house  of  commons,  how- 
ever, on  a  late  occasion,  allowed  a  mistake  of  tellers  to  be  corrected 
the  day  after  the  vote  was  declared.  "  On  the  19th  of  February, 
1847,  notice  was  taken  that  the  number  of  the  noes  reported  by  the 

1  Hatscll,  IT.  195,  note.  be  made,  or  question  to  be  raised,  whilst  it  is 

»  Hans.  (3),  XLVII.  2,  3,  4.  going  on. 

*  According  to  our  practice,  though  the  pre-         *  Hatsell,  IT.  199.     See  also  ante,  §  1809. 
siding  officer  will  allow  the  pending  question         ^  Hatsell,  II.  19?,  note,  199,  note, 
to  be  open  for  debate  after  a  division  has  com-         *  Pari.  Reg.  U.  168,  169. 
aenced,  he  will  not  allow  any  new  motion  to 


704  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI 

tellers  on  a  previous  day,  did  not  correspond  with  the  printed  lists ; 
and  the  tellers  for  the  noes  being  present,  stated  that  the  number 
had  been  reported  by  them  by  mistake.  The  clerk  was  ordered  to 
correct  the  number  in  the  journal."  ^  But,  according  to  the  prac- 
tice of  our  legislative  assemblies,  a  member  may  change  his  vote 
as  many  times  as  he  pleases ;  and  it  is  our  constant  practice  to 
alter  the  decision  of  the  assembly  as  recorded  in  the  journal,  to 
make  it  correspond  with  a  previous  correction  of  the  votes.^ 

1814.    It  being  necessary  in  order  to  a  division,  that  the  question 
should  be  first  put  and  taken  by  the  voices,  —  the  object  of  the 
division  being,  as  already  stated,  merely  to    ascertain   who    gave 
then-  voices,  and  how  they  gave  them,  —  it  sometimes  happened, 
when  a  division  was  not  expected,  and  the  question  was  put  and 
taken  by  the  voices,  before  the  house  was  cleared  of  strangers,  and 
the  doors  closed,  and  then  a  division  was  called  for,  that  many 
members  in  the  rooms  above  and  adjacent  to  the  house  were  pre- 
vented from  voting,  because  they  were  not  present  in  the  house 
when  the  question  was  put,  although  they  might  be  present  before 
the  division   actually   commenced.      This   inconvenience   did   not 
occur,  when  it  was  known  or  expected  that  a  division  would  be 
called  for  ;  for,  in  that  case,  the  speaker  directed  the  withdrawal  of 
strangers  before  putting  the  question,  and  thus  gave  members  time 
to  come  in  and  vote.     In   order   to   remedy  the  difficulty,  which 
sometimes  occurred  when  a  division  was  not  expected,  Mr.  Green, 
chairman  of  committees  of  the  whole  in  the  year  1843,  gave  notice, 
that,  unless  he  should  be  otherwise  directed  by  the  house,  it  was 
his  intention,  after  he  had  put  the  question  in  the  first  instance,  to 
put  it  again  as  soon  as  the  gallery  was  cleared  ;  and  to  allow  mem- 
bers, who  might  then  be  present,  to  take  part  in  the  division.^     This 
suggestion  seems  to  have  been  acted  upon,  and  the  practice  to  have 
become  established  accordingly.     When,   therefore,   a   division   is 
not  expected,  and  the  speaker  or  chairman  puts  the  question,  before 
directing  the  house  to  be  cleared  and  the  doors  closed ;  and  upon 
the  voices  being  given,  and  the  result  declared  by  the  speaker,  a 
division  is  then  called  for,  the  speaker  thereupon  dhects  the  house 
to  be  cleared,  and  puts  the  question  a  second  time  after  the  doors 
are  closed ;  and  thus,  members  coming  in  between  the  first  and 
BBcond  putting  of  the  question,  are  enabled  to  vote. 

1 815.    Another  practice  has  also  been  recently  introduced  into  the 


1  Comm.  Jour.  CH.  134.  »  Hans.  (3),  LXVI.  420. 

2  Post,  §  1549  n. 


Chap.  IL]         taking  the  question  by  a  division.  705 

house  of  commons,  which,  in  connection  with  that  already  adverted 
to,  very  much  facilitates  the  assembling  of  the  members  in  the 
house,  for  the  purpose  of  a  division,  namely,  the  ringing  of  a  bell 
when  a  division  is  about  to  ensue.  When  it  is  known,  therefore, 
beforehand,  that  a  division  will  be  called  for,  the  speaker,  as  soon 
as  the  debate  is  closed,  and,  in  other  cases,  as  soon  as  a  division  is 
called  for,  gives  the  order  that  "  strangers  must  withdraw,"  and,  at 
the  same  instant,  the  door-keepers  shout,  "  clear  the  gallery,"  and 
ring  a  bell,  which  communicates  with  every  part  of  the  building. 
This  "  division  bell,"  as  it  is  called,  is  heard  in  the  lobbies,  the  re- 
freshment rooms,  the  waiting  rooms,  and  wherever  members  are 
likely  to  be  dispersed,  and  gives  notice  that  a  division  is  at  hand. 
Those  who  wish  to  vote  hasten  to  the  house  immediately ;  and 
while  the  messengers  are  engaged  in  excluding  strangers,  have  time 
to  reach  their  places.^ 

1816.  "  It  is  a  very  unparliamentary  proceeding,"  says  Mr.  Hat- 
sell,  "  to  divide  the  house  for  the  sake  of  a  division  only ;  whereas 
the  old  rule,  and  practice  too,  were,  that  the  house  should  be  di- 
vided only  when  the  speaker's  determination  upon  the  voices  was 
wrong,  or  doubtful,  and  thought  to  be  so,  by  the  member  calling  for 
the  division,  as  the  words  then  used  imply ;  for,  when  the  speaker 
has  declared  for  the  ayes  or  the  noes,  upon  the  cry,  the  member 
who  would  have  the  division,  says,  "  the  contrary  voice  has  the 
question."  ^ 


Section  IV.     Of  the  Differences  between  the  two  Houses  in 
THE  Mode  of  taking  the  Question. 

1817.  It  remains  now  to  take  notice  of  some  differences  which 
exist  between  the  two  houses,  in  the  mode  of  taking  the  question 
by  the  voices,  and  upon  a  division ;  there  being  no  essential  dif- 
ference between  the  two,  where  the  matter  is  determined  by  con- 
sent. The  question  is  taken,  in  the  first  instance,  and  the  house 
divided,  in  the  house  of  lords,  in  the  manner  already  stated.  ^ 

1818.  One  of  the  most  important  differences  between  the  two 
houses,  giving  rise  to  a  corresponding  difference  between  them,  in 
the  mode  of  proceeding  in  taking  a  question,  is  the  right  of  peers 
to  appoint  other  peers  to  vote  for  them  in  their  absence ;  which  is 

1  llay,  268.  result  of  a  vote,  can  be  corrected.    See  ParL 

-  Hutsell,  II.  199,  note,  as  to  whether  a  mis-     Reg.  (1),  II.  160  to  169. 
lake  of  the  presidinj;  officer,  in  declaring  the         *  See  ante,  §  401. 


706  LEGISLATIVE   ASSEMBLIES.  [PaRT   VI. 

called  making  or  giving  their  proxies.  In  order,  however,  to  entitle 
a  peer  to  exercise  this  right,  he  must  obtain  the  king's  leave  to  be 
absent  from  his  place  in  parliament.  The  standing  orders  of  the 
house  in  reference  to  proxies  provide,  that  no  lord  shall  be  capa- 
ble of  receiving  above  two ;  that  proxies  from  a  spiritual  lord  shall 
be  made  to  a  spiritual  lord,  and  from  a  temporal  lord  to  a  temporal 
lord  ;  that  if  a  peer,  having  given  his  proxy,  sits  again  in  the  house, 
his  proxy  shall  be  thereby  determined ;  that  proxies  may  be  used  in 
preliminaries  to  private  causes,  but  not  in  giving  judgment ;  that 
no  proxy  shall  be  made  use  of  in  any  judicial  cause,  although  the 
proceedings  are  by  way  of  bill ;  that  a  lord,  having  a  proxy  and 
voting,  shall  give  a  vote  for  the  proxy,  in  case  proxies  are  called  for. 
Proxies  are  to  be  entered  with  the  clerk,  but  not  on  the  same  day 
on  which  the  peers  giving  them  have  been  present  in  the  house  ;  if 
entered  after  three  o'clock,  they  cannot  be  used  the  same  day ;  and 
they  cannot  be  used  at  all  when  the  house  is  in  a  committee  of  the 

whole.i 

1819.  "The  most  usual  practice,"  says  Mr.  May,  "  is  for  lords  to 
hold  the  proxies  of  other  lords  of  the  same  political  opinions,  and 
for  the  votes  of  both  to  be  declared  for  the  same  side  of  a  question. 
This  is  the  true  intent  of  a  proxy ;  but  it  occasionally  happens  that 
a  lord  has  been  privately  requested  by  another  lord,  whose  proxy 
he  holds,  to  vote  for  him  on  the  opposite  side ;  in  which  case,  it  is 
understood  to  be  regular  to  admit  their  conflicting  votes  in  that 
manner." 2  But  it  is  said,  that  this  variation  from  the  ordinary  rule 
is  permitted  upon  the  supposition,  that  between  the  time  of  voting 
and  of  declaring  the  vote  of  the  proxy,  a  lord  may  be  supposed  to 
have  altered  his  own  opinion;  for  the  form  of  the  proxy  would 
appear  to  delegate  to  the  lord  who  holds  it,  the  absolute  right  of 
decision  for  the  absent  lord,  without  any  reference  to  the  opinions 
of  the  latter,  expressed  after  the  signature  of  that  instrument. ^ 

1820.  Another  point  of  difference,  which  requires  to  be  adverted 
to,  between  the  two  houses,  in  respect  to  their  proceedings  in  the 
taking  of  a  question,  results  from  the  right  of  peere  to  protest 
airainst  any  vote  from  which  they  dissent.  In  addition  to  the 
power  of  expressing  his  opinion  by  his  vote,  every  peer  is  at  liberty 
to  record  his  dissent,  with  the  reasons  or  grounds  of  it,  in  the  form 
of  what  is  called  a  "  protest,"  entered  on  the  journals  and  signed 
by  him.     Every  one  who  dissents,  is,  of  course,  free  to  express  his 

1  May,  278,  279.  8  ilay,  279. 

2  Hans.  (3),  X.  1044. 


Chap.  II.]  American  modes  of  taking  a  question.  707 

dissent  in  his  own  way ;  but  it  is  customary,  where  several  lords 
concur  in  the  same  opinions,  for  all  of  them  to  sign  the  same  protest 
Any  peer  may,  however,  sign  a  protest,  with  others,  for  some  of  the 
reasons  given,  specifying  which ;  or,  for  certain  of  the  reasons  given, 
and  for  others  peculiar  to  himself  which  he  particularly  sets  forth. 
According  to  the  standing  order  of  the  house,  all  peers,  who  shall 
make  protestation  or  enter  their  dissents  to  any  votes,  are  required 
to  "  cause  their  protestation  or  dissents  to  be  entered  into  the  clerk's 
book,  the  next  sitting  day,  before  the  hour  of  two  o'clock,  otherwise 
the  same  shall  not  be  entered ;  and  shall  sign  the  same  before  the 
rising  of  the  house  the  same  day."  If  a  protest,  or  any  part  of  it, 
or  any  of  the  reasons,  are  disrespectful  to  the  house,  or,  in  any 
respects  improper  to  remain  upon  the  journal,  they  may  be  ordered 
to  be  expunged.^ 


Section  V.     Of  some  Usages  and  Methods  in  the  Taking  of 
Questions,  which  are  peculiar  to  this  Country. 

1821.  Instead  of  taking  the  question,  in  the  first  instance,  by  the 
voices,  as  ascertained  in  a  preceding  section,  a  method,  very  com- 
monly practised  in  this  country,  particularly  in  the  Eastern  States, 
is  that  already  described  in  a  formc-r  part,-  by  the  show  of  hands,  in 
which  the  speaker  decides  by  the  eye,  which  party  makes  the 
greater  show,  and,  according  to  the  result,  declares  that  it  is  or  is 
not  a  vote,  so  that  the  ayes  or  noes  have  it.  There  is  no  parlia- 
mentary difference  between  this  and  the  former  mode ;  they  may 
be  both  employed  indifferently. 

1822.  If  the  speaker's  decision  is  doubted  or  questioned,  then 
he  is  to  ascertain,  in  such  manner  as  he  may  think  proper,  or  as 
may  be  provided  by  the  rules  and  orders,  the  members  voting  on 
each  side  respectively,  and  announce  the  result. 

1823.  The  method  of  taldng  the  question  by  yeas  and  nays  in 
the  manner  already  described,-^  does  not  make  one  step. of  a  series, 
but  is  a  substantive  motion,  which  is  not  resorted  to  as  a  matter  of 
course,  but  may  be  moved  for  as  a  substitute  for  any  or  all  the 
others. 

1824.  In  taking  a  question  in  this  manner,  the  clerk  calls  over 
the  names  of  the  members,  as  they  stand  arranged  on  the  roll  of  the 


»  T-ords'  Jour.  XLH.  82;  May,  280.    Protests        «  Ante,  §  403. 
are  ui  partial  use  with  us.    See  ante,  §  410.  »  See  ante,  ^  407. 


I 
708  LEGISLATIVE   ASSEMBLIES.  [PaRT    VI 

house,  and  notes  the  answer  of  each ;  he  then  calls  over  the  names 
of  those  who  have  voted,  first  those  in  the  affirmative,  and  then 
those  in  the  negative,  in  order  that  members  may  see  that  their 
votes  are  correctly  recorded ;  he  then  calls  the  names  of  the  absen- 
tees, and  of  such  members  present,  as  may  have  their  names  sug- 
gested, or  may  themselves  suggest  their  own  names,  to  him,  for  that 
purpose,  and  having  completed  the  call  he  proceeds  to  ascertain  the 
numbers,  and  hands  them  to  the"  speaker,  who  thereupon  gives  his 
casting,  or  other  vote,  if  he  votes  at  all,  and  announces  the  decision 
of  the  house. 

1825.  The  pomt  of  time,  to  which  the  right  of  voting  is  referred, 
as  above  stated,  according  to  the  common  parliamentary  law,  is  the 
being  in  the  house  at  the  time  the  question  is  put,  and  this  is  the 
point  of  time,  unless  otherwise  regulated  in  each  assembly  by  a 
special  rule.  In  the  house  of  representatives  of  the  United  States, 
the  general  rule  requires  members  to  be  present  within  the  bar  of 
the  house  when  the  question  is  put ;  but  when  the  yeas  and  nays 
are  taken,  and  any  member  asks  leave  to  vote,  the  speaker  is 
directed  to  inquire  of  him  whether  he  was  within  the  bar  when  his 
name  was  called.  Until  the  calling  of  the  roll  is  completed,  and 
the  decision  of  the  house  announced,  members  have  a  right  to  be 
called  again  and  change  their  votes,  and  during  this  period  of  time, 
also,  absent  members,  if  allowed,  as  they  may  be,  if  no  one  objects, 
come  in  and  vote  with  the  others.  If  they  do  not  apply  until  after- 
wards, they  can  only  be  permitted  to  record  their  votes  by  leave  of 
the  house,  on  motion  and  vote,  in  the  ordinary  manner.  The  same 
rule  appUes  to  other  votes,  which  by  the  orders  of  the  house  are  not 
receivable.  Votes,  accidentally  omitted,  may  be  entered  at  any 
time. 


CHAPTER    THIRD. 

OF  THE  QUESTION  THUS  TAKEN. 

1826.  Every  question,  which  is  propounded  to  a  legislative 
assembly,  for  its  determination,  and  voted  upon  in  any  of  the  man- 
ners above  described,  receives  its  decision  according  to  the  prepon- 
derance of  the  votes,  which,  unless  some  other  rule  is  expressly 


Chap.  IIL]  questioxs  taken.  709 

prescribed,  as  there  usually  is  in  each  asseml)ly,  in  reference  to  par- 
ticular questions,  is  ordinarily  elFocted  by  a  majority.  In  those 
cases  where  the  rules  or  customs  of  any  assembly  allow  a  vote  to 
remain  on  an  equal  division,  the  decision,  as  neither  side  prepon- 
derates, is  necessarily  in  the  negative.  In  many  cases,  it  is  pro- 
vided, either  by  a  constitutional  requisition,  or  by  rule,  that 
particular  questions,  in  order  to  prevail,  shall  require  more,  or 
admit  of  less,  than  the  ordinary  majority  in  their  favor. 

1827.  Where  more  than  the  ordinary  majority  is  required,  as  it 
is,  for  example,  under  most  of  our  constitutions,  to  lake  the  initia- 
tory steps,  by  passing  resolutions  for  that  purpose,  for  their  amend- 
ment,-and  for  the  passing  of  certain  classes  of  biUs  ;  all  questions  for 
amending  such  resolutions  and  bills,  except  amendments  from  the 
other  branch,  and  all  incidental  or  preliminary  questions  thereon, 
short  of  the  final  question,  are  determinable  by  the  ordinary 
majority.^  The  same  is  the  case  where  it  is  required  by  rule,  that 
certain  classes  of  questions  shall  not  be  adopted,  unless  a  proj)ortion 
greater  than  a  majority  is  in  their  favor.  All  amendments  of  such 
questions  require  only  a  major  vote.^ 

1828.  According  to  the  practice  in  our  legislative  assemblies, 
therein  agreeing  with  the  ancient  rule  and  practice  of  the  house  of 
commons,"'  a  member  may  change  his  vote,  after  he  has  once  given 
it,  provided  he  does  so,  by  communicating  the  change  to  the  tellers, 
if  the  vote  is  taken  in  that  manner,  before  they  announce  the  result,* 
or,  if  taken  by  yeas  and  nays,  have  his  name  called  again  before 
the  decision  of  the  assembly  is  announced,  though  the  numbers  may 
be  declared.'  The  same  principle  seems  applicable  to  oral  suffrage 
and  all  other  forms  of  voting,'^  except  by  ballot. 

1829.  When  the  numbers  on  the  one  side  and  on  the  other  of 
the  question,  are  thus  ascertained,  and  the  speaker's  casting  vote 
given,  if  necessaryj^"  the  decision  of  the  assembly  is  thereupon 
announced  accordingly,  by  the  presiding  officer,  either  in  the  affinn- 
ative  or  negative  as  the  case  may  be,  of  the  words  of  the  motion. 
The  decision,  thus  pronounced,  is  the  judgment  of  the  house,  not 
only  upon  the  proposition  itself,  but  upon  its  equivalent.^ 


1  J.  of  S.  TIT.  314;    Lloyd's  Deb.  U.  179;  Sess.  357;  Same,  29th   Cong.   2d   Sess.   494; 

J.  of  n.  V.  IGO,  294;  Same",  VII.  531.  Same,  31st  Cong.  1st  Sess.  1206;  Cong.  Globe, 

a  Cong.  Globe,  XVIII.  639;  Same,  VII.  131;  VIII.  494,  531;    Same,  XI.  667;  Same,  XIII. 

Same,  XIII.  503.  320;  Same,  XV.  529;  Same,  XVII.  r.7-'. 

3  .^lav,  225;  Comm.  Jour.  I.  303.  »  Cong.  Globe,  XXI.  186. 

*  Cong.  Globe,  XXI.  186.  "  J.  of  H.  20th  Cong.  2d  Sess.  357. 

'  .T.  of  n   VII.  3  42;   Same,  20th  Cong.  2d  »  Cong.  Globe,  XI.  7S2. 

60 


I 

710  LEGISLATIVE    ASSEMBLIES.  [PaRT    VL 

1830.  Questions  are  said  to  be  equivalent,  when  the  negative  of 
the  one  amounts  to  the  affirmative  of  the  other,  and  leaves  no 
alternative.^  Thus,  in  amendments,  which  furnish  the  most  fre- 
quent examples  of  equivalent  questions,  the  negative  of  striking 
out  certain  words  amounts  to  the  affirmative  of  agi'eeing  to  the 
same  words.-  So,  on  a  motion  to  agree  or  disagree  with  the  other 
branch  in  its  amendments  of  a  bill,  a  vote  in  the  affirmative,  on 
either  of  these  motions,  inasmuch,  as  on  either  the  amendments  in 
question  may  be  amended,  is  exactly  the  equivalent  of  a  negative 
of  the  other,  and  no  alternative  remains.^  So,  on  a  motion  to 
recede  from  a  disagreement  with  an  amendment  of  the  olher 
branch,  it  has  been  held,  in  congress,  that  a  vote  in  the  affirmative 
is  equivalent  to  an  agreement  to  the  amendment ;  ^  and  that  a  vote 
in  the  negative  of  the  same  question  is  equivalent  to  a  vote  to 
insist  on  the  disagreement.'^  So,  if  a  motion  is  made  to  disagree 
to  or  reject  an  amendment  reported  by  a  committee  of  the  whole 
house,  and  this  motion  passes  in  the  negative,  the  decision  is 
equivalent  to  an  agreement  to  the  amendment/'  So,  where  an 
amendment  of  the  other  branch  was  referred  to  a  committee  of  the 
whole  house,  who  reported  their  disagreement  thereto,  and  on  the 
question  to  concur  in  this  report  it  was  decided  in  the  negative,  the 
non-concurrence  was  held  to  be  equivalent  to  a  vote  to  agree  to  the 
amendment." 

1831.  So,  if  the  question,  on  passing  a  bill  to  its  next  regular 
stage,  is  decided  in  the  negative,  such  vote  is  equivalent  to  a  rejec- 
tion, and  may  be  so  entered  by  the  clerk ;  ^  the  same  effect  is  pro- 
duced, when  the  enacting  clause,^  or  the  whole  biiy  is  struck  out ; 
and,  on  the  other  hand,  if,  on  a  question  of  rejection  a  bill  is 
retained,  this  vote  may  be  considered  as  equivalent  to  a  vote  pass- 
ing a  bill  to  its  next  stage.^^ 

1832.  In  whatever  way,  and  at  whatever  time,  whether  by  allow- 
ance or  disallowance  of  votes  as  stated  in  the  next  chapter,  or  in 
some  other  manner,  the  apparent  numbers  of  the  members,  voting 
on  a  division,  are  changed,  thereby  changing  the  result  of  the  vote, 
not  only  are  the  changes  of  the  individual  votes  to  be  noted  on  the 


1  Jefferson's  ManuoJ,  Sec.  XXXVIIL  ^  Cong.  Globe,  X.  407. 

8  Jefferson's  Manual,  Sec.  XXXVIII.  «  J.  of  H.  21st  Cong.  1st  Sess.  292,  610. 

«  Jefferson's  Manual,  Sec.  XXXVIII.  i  J.  of  H.  17th  Cong.  2cl  Sess.  391. 

<  Reg.  of  Deb.  III.  Part  2,  2647.    This  point  »  See  the  Journals  of  the  H.  of  R.  generally 

has  been  otherwise  decided.    J.  of  H.  20th  •  J.  of  H.  21st  Cong.  1st  Sess.  493. 

Cong.  1st  Sess.  695;    Same,  27th  Cong.   1st  w  J.  of  H.  VIII.  236,  540. 

Sess.  444,  445.  "  Jefferson's  Manual,  Sec.  XXXVIII. 


Chap.  IV.]        disallowance  or  addition  of  votes.  711 

journal,  but  a  change  of  the  decision  takes  place,  as  of  the  day  on 
which  the  voting  occurred,  and  with  the  same  effect  as  if  it  had 
been  correctly  announced  on  that  day.^  AU  subsequent  proceed- 
ings in  reference  to  the  vote  in  question,  and  predicated  upon  the 
idea  that  it  was  correctly  declared,  are,  of  course,  wholly  null  and 
ineffectual.^ 


CHAPTER    FOURTH. 

OF    THE    DISALLOWANCE    OR    ADDITION    OF    VOTES. 

1833.  It  has  been  seen,  that,  whilst  a  division  is  taking  place,  it 
is  within  the  functions  of  the  speaker  to  compel  a  member  to  vote, 
or  to  prevent  him  from  voting,  without  debate  or  delay  ;  his  deter- 
mination, in  this  respect,  being  subject  to  the  future  revision  of  the 
house.  So,  when  a  member  has  actually  voted,  if  exception  is 
taken  to  his  vote  at  any  time  before  the  members  on  the  division 
have  been  declared  by  the  speaker,  although  reported  by  the  tellers 
to  him,  the  case  is  in  like  manner  within  the  speaker's  summary 
jurisdiction,  as  to  all  matters  and  questions  arising  in  the  course 
of  a  division.  When,  however,  the  speaker  has  declared  the  respec- 
tive numbers,  which  are  the  result  of  any  division,  the  question  is 
thereby  resolved  according  to  such  declaration ;  and  the  numbers 
can  only  be  altered  by  the  house,  upon  motion  and  vote,  in  the 
ordinary  manner  of  proceeding,  resolving  that  certain  votes  be 
allowed  or  disallowed.  Cases  are  frequent,  in  which  votes 
received  have  been  disallowed ;  very  rare,  in  which  votes  refused 
have  been  allowed. 

1  J.  of  H.  20th  Cong.  2d  Sess.  357;  Same,  Globe,  IX.  17;    Same,  XI.   925,  926;  Same, 

26th  Cong.  2d  Sess.  32;  Same,  27th  Cong.  1st  XXII.  350;  Same,  XIII.  315;  Same,  XV.  856; 

Sess.  447 ;  Same,  30th  Cong.  1st  Sess.  1079,  Same,  XXI.  1786. 

1080,  1081;  Same,  175,  176;  Same,  31st  Cong.  ^  j.  of  H.  30th  Cong.  1st  Sess.  1079,  1080, 

1st  Sess.  1436;    Same,  2d  Sess.  171;  Reg.  of  1081;  Reg.  of  Deb.  XI.  Part  2,  1521,  1523. 

Deb.  XL  Part  2,  1521,   1522,  1523;    Cong.  1523;  Cong.  Globe,  XXL  1786. 


712  LEGISLATIVE    ASSEMBLIES.  [PaRT  VI. 


Section  I.     Of  the  Allowance  of  Votes  effused. 

1834.  There  seems  no  good  reason,  why  votes,  improperly  re- 
fused, should  not  be  afterwards  allowed  on  motion,  as  well  as  that 
votes  improperly  received  should  be  disallowed.  One  case  only, 
however,  has  been  noticed,  in  which  a  proceeding  analogous  to 
the  allowance  of  votes  improperly  refused  took  place.  January 
10th,  1647,  a  division  having  taken  place,  and  the  tellers  being 
unable  to  agree  upon  the  numbers,  the  house  divided  again,  and 
all  who  were  not  present  at  the  first  telling  were  required  to  with- 
draw. The  tellers  reported  the  numbers  to  be  thu-ty-three  on  each 
side ;  one  member,  who  was  present  and  told  on  the  first  division, 
but  did  not  come  in  upon  the  second  telling,  until  the  numbers 
were  given  in  and  reported  by  the  speaker,  was  desired  to  be  count- 
ed ;  a  debate  arose,  whether  he  should  or  not,  as  he  did  not  come 
in  until  after  the  report  was  made  ;  and  the  house  divided  again  on 
this  question;  but,  before  it  was  told,  the  noes  yielded,  and  that 
member  being  added  to  the  yeas,  made  their  number  thirty-four.^ 

1835.  In  the  following  case,  it  seems  to  be  doubtful  whether 
the  proceeding  was  intended  for  the  purpose  of  compelling  mem- 
bers to  vote,  or  of  allowing  votes  not  given  to  be  counted  if  neces- 
sary for  the  decision  of  the  question  :  —  On  the  28th  of  May,  1623, 
it  is  entered  in  the  journal  of  the  commons,  that  the  bill  for  York 
house  being  thirdly  read,  "  after  a  very  long  debate,  the  question 
being  put,  and  the  voice  doubtful,  the  house  divided,"  and  tellers 
were  appointed.  "  Seven  being  returned  into  the  committee 
chamber,  and  refusing  to  give  voice  one  way  or  the  other,  were 
sent  for,  and  their  names  taken,  and  the  resolution  stayed  till  those 
which  had  gone  out,  returned.  With  the  noes  143,  with  the  yeas, 
168,  25  difference."  2 


Section  II.     Of  the  Disallowance  of  Votes  received. 

1836.  The  disallowance  of  votes  usually  takes  place,  when,  after 
the  declaration  of  the  numbers  by  the  speaker,  it  is  discovered  that 
certain  members  who  voted  were  not  present  when  the  question 
was  put,  or  were  so  interested  in  the  question,  that  they  ought  to 
have  withdrawn  from  the  house. 

1  Hans.  Pari.  Hist.  III.  48,  49.  *  Comra.  Jour.  I.  714. 


Chap.  IV.]  disallowance  of  votes.  713 

1837.  I.  It  has  already  been  seen,  that  when  it  is  ascertained 
that  members  have  impropfrly  voted,  on  a  division,  who  were  not 
in  the  house  when  the  question  was  put,  if  this  takes  place,  before 
the  numbers  are  declared  by  the  speaker,  such  votes  are  disallowed 
by  him  at  once,  and  not  included  in  the  numbers  declared.  If  the 
fact  is  not  ascertained  until  after  the  numbers  are  declared,  it  is 
then  necessary,  that  there  should  be  a  motion  and  vote  of  the  house 
for  their  disallowance  ;  and  this  may  take  place,  for  any  thing  that 
appears  to  the  contrary,  at  any  time  during  the  session,  and  has  in 
fact  taken  place  after  the  lapse  of  several  days  from  the  time  the 
votes  were  given.^ 

1838.  II.  Votes  have  also  been  disallowed,  after  the  numbers 
have  been  declared,  on  the  ground,  that  the  members  voting  were 
interested  in  the  question  ;  and,  in  reference  to  this  proceeding,  there 
is  no  time  limited  within  which  it  must  take  place. 

1839.  There  seems  to  be  very  little  doubt  or  difficulty,  commonly, 
in  determining  what  interest  disqualifies  a  member  from  voting,  or 
would  give  rise  to  the  disallowing  of  votes  if  given.  The  case  of 
members  voting  on  questions  concerning  their  own  pay  is  an  ex- 
ception from  which  no  principle  can  properly  be  derived.  It  has 
invariably  been  decided,  of  course,  that  this  was  not  such  an  interest 
as  would  disqualify  ;  either  because  it  was  a  case  of  necessity,  or 
because  all  the  members  were  equally  concerned  in  interest.-  Five 
leading  cases  have  occurred  in  the  British  parliament  at  different 
periods,  which  embody  the  law  on  this  subject,  and  deserve  to  be 
mentioned  accordingly. 

1840.  The  first  of  these  cases  occurred  on  the  12th  of  June,  1604, 
and  is  thus  recorded :  —  A  bill  for  the  establishment  of  divers  man- 
ors and  lands  of  Edward,  late  duke  of  Somerset,  being  ofiered  to 
the  question  of  commitment  by  Mr.  Speaker :  "  Moved,  that  Mr. 
Seymour,  a  member  of  the  house,  and  a  party,  might  go  forth, 
during  the  debate:  which  was  conceived  to  be  agreeable  with 
former  order  and  precedent  in  like  cases,  and  was  so  ordered."  "And 
IVIr.  Seymour  went  presently  forth  at  the  door."  ^ 

1841.  The  second  of  these  cases,  which  occurred  on  the  4th  of 
February,  1664,  is  thus  recorded  : — A  bill  for  settling  the  differ- 
ences between  Great  and  Little  Yarmouth,  being  reported  by  the 
committee  with  amendments  which  were  read  and  agreed  to,  the 
question   being  put,  that  the  bill  with  the  amendments,  be  en- 

1  May,  267,  268,  ^  Comra.  Jour.  L  237. 

>  Coiig.  Globe,  IX.  208. 

60* 


714  LEGISLATIVE   ASSEMBLtES.  [PaRT    VI. 

grossed,  the  house  was  divided,  and  the  yeas  went  out.  The  yeas 
were  eighty-one  in  number,  and  th.e  noes  eighty.  "  But  Sir  Robert 
Paston,  a  member  of  the  house  appearing  to  be  somewhat  concerned 
in  point  of  interest ;  and  having  presented  a  bill  with  his  petition 
thereto  annexed,  and  being  numbered  with  the  yeas,  and  the  ques- 
tion thereupon  arising,  whether,  by  the  orders  of  the  house  he 
should  not  have  withdrawn ;  and  Sir  Robert  to  avoid  engaging 
the  house  in  a  debate,  freely  offered  to  withdraw ;  and  that  no 
advantage  should  be  had  by  his  being  told  with  the  yeas  ;  and  the 
voices  being  then  equal,  Mr.  Speaker  declared  himself  to  be  with 
the  yeas :  and  so  it  was  resolved  in  the  affirmative,  that  the  said 
bill  be  engrossed."  ^ 

1842.  The  house  of  commons  having  determined  in  December, 
1796,  that  towards  raising  the  supply  granted  for  the  current  year, 
the  sum  of  eighteen  millions  of  pounds  should  be  raised  by  annui- 
ties, passed  an  act  for  that  purpose,  by  which  it  was  provided  that 
any  contributor  to  the  said  sum  should  be  entitled,  for  every  one 
hundred  pounds  contributed  and  paid,  to  the  principal  sum  of  one 
hundred  and  twelve  pounds  and  ten  shillings  in  annuities,  at  the 
rate  of  5  per  cent,  a  year,  irredeemable  unless  with  the  consent  of 
the  proprietors  thereof,  untU  the  expiration  of  three  years  from  the 
period  at  which  the  existing  annuities,  at  the  rate  of  5  per  cent, 
should  be  redeemed  and  paid  off,  or  the  interest  payable  thereon 
reduced.-  The  subscribers  to  the  loan,  having  very  soon  discov- 
ered that  they  were  Uable  to  incur  a  considerable  loss  from  the  sub- 
sequent depression  of  the  funds,  the  minister  moved,  on  the  30th  of 
May  following,  that  they  should  be  allowed  a  further  sum  of  five 
pounds  in  every  hundred,  which  would  amount  in  the  whole  to  an 
annuity  of  sixty  or  seventy  thousand  pounds.'^  The  speaker,  being 
appealed  to,  said,  that  in  his  opinion,  the  subscribers  to  the  loan 
had  a  direct  pecuniary  interest  in  the  measure  in  question,  which 
would  disquahfy  them  from  voting  thereon,  unless  they  declared 
their  intention  not  to  profit  by  the  bonus  proposed  to  be  given  to 
them.  The  resolution  was  opposed,  on  the  ground,  that  the  loan 
was  a  speculation,  on  which  the  subscribers  entered  with  the  usual 
expectation  of  gain  or  loss,  as  on  any  other  speculation,  and  was 
carried  in  the  affirmative  by  thirty-six  to  thirty-five  votes.  Motions 
were  thereupon  made  that  the  votes  of  two  of  the  members  whose 
names  appeared  on  the  list  of  subscribers,  and  who  had  voted  for 


1  Comm.  Jour.  VIII.  594.  »  Ann.  Reg.  Part  XXXIX.  143. 

'  Comm.  Jour.  LIL  181. 


Chap.  IV.]  disallowance  of  votes.  715 

the  resolution  should  be  disallowed.  The  members  in  question 
were  thereupon  heard  in  their  defence,  and  both  having  formally 
disclaimed  all  intention  of  profiting  by  the  measure,  which  the 
speaker  was  of  opinion  was  sufficient  to  qualify  them  as  voters, 
whether  their  determination  was  expressed  before  or  after  the 
division,  the  motions  to  disallow  their  votes  were  decided  in  the 
negative.^  This  is  known  as  the  case  of  the  subscribers  to  the 
loyalty  loan. 

1843.  The  fourth  of  these  cases,  which  occurred  on  the  4th  of 
July,  1800,  arose  out  of  a  bill  to  incorporate  "  The  London  Com- 
pany for  the  manufacture  of  flour,  meal,  and  bread."  That  biU 
being  in  its  third  reading,  and  variouirly  amended,  a  further 
amendment  was  proposed  to  be  made  to  the  bill  by  leaving  out 
the  word  "ten,"  in  order  to  insert  the  word  "five"  instead  thereof, 
in  that  part  of  the  bill  which  declares  that  no  dividend  of  the 
profits  of  the  said  undertaking  shall  exceed  in  the  whole  ten 
pounds  per  centum  per  annum  on  the  amount  of  the  sum  subscribed, 
and  the  question  being  put,  that  the  word  ten  stand  part  of  the 
bill,  the  house  divided,  and  it  was  resolved  in  the  aflii-mative,  forty- 
seven  yeas  to  sixteen  noes.  Notice  being  then  taken  that  a  mem- 
ber who  voted  in  the  last  question  with  the  yeas,  was  named  in 
the  bill  as  one  of  the  persons  who  had  agreed  to  become  a  subscri- 
ber to  the  said  undertaldng,  and  a  motion  being  made,  and  the 
question  proposed,  that  the  vote  of  such  member  be  disallowed, 
he  was  heard  in  his  place,  and  stated  that  he  had  paid  no  money 
towards  this  plan,  but  that  he  intended  to  subscribe  to  it,  conceiv- 
ing it  would  be  for  the  public  benefit,  and  then  withdrawing, 
it  was  resolved  that  his  vote  be  disallowed.  Similar  proceedings 
took  place  in  regard  to  four  other  members,  who  all  agreed  that 
the  house  having  come  to  the  resolution  above  mentioned,  they 
would  make  no  objection  to  the  disallowance  of  their  votes,  and 
their  votes  were  disallowed  accordingly.^ 

1844.  The  last  of  the  cases  alluded  to  above  was  that  of  the 
gold  coin  bill,  pending  in  parliament  in  1811,  and  which  was  as 
follows.  An  act  passed  in  the  lords,  "  for  making  more  elTectual 
provision  for  preventing  the  current  gold  coin  of  the  realm,  from  be- 
ing paid  or  accepted  for  a  greater  value  than  the  cmTcnt  value  of 
such  coin ;  for  preventing  any  note  or  notes  of  the  governor  and 
company  of  the  Bank  of  England  from  being  received  for  any 

1  Comm.  Jour.  LU.  632;  Pari.  Reg.  XLVIL       «  Coram.  Jour.  LV.  732. 
884,  687 


716  LEGISLATIVE   ASSEMBLIES.  [PaRT   VL 

smaller  sum,  than  the  sum  therein  specified ;  and  for  staying  pro- 
ceedings upon  any  distress  by  tender  of  such  note."  This  bill, 
which  was  introduced  to  remedy  some  of  the  evils  growdng  out  of 
a  suspension  of  specie  payments  and  a  depreciation  of  paper- 
money,  was  sent  to  the  commons  for  concm-rence,  and  was  there 
read  a  fu-st  and  second  time.  A  motion  was  thereupon  made  re- 
citing that  it  appears  to  the  house  that  in  consequence  of  an  act  for 
protecting  the  Bank  of  England  from  payment  of  its  lawful  credi- 
tors in  specie,  the  profits  of  that  corporation  have  increased  to  an 
enormous  degree ;  that  besides  increasing  their  dividend  upon  their 
capital  stock  from  seven  to  ten  per  cent.,  they  have  at  different 
tunes  divided  amongst  themselves  upwards  of  six  millions  of 
money ;  and  that  in  addition  to  such  profit,  the  price  of  their  stock 
has  by  the  advantages  of  increased  issues  of  paper  and  non-pay- 
ment of  creditors  been  increased  from  one  hundred  and  eighteen 
pounds  a  hundi-ed,  to  two  hundred  and  thirty-six ;  that  under  such 
circumstances,  a  bill  is  now  pending  in  this  house,  giving  a  fixed 
legal  value  in  the  coin  of  these  realms  to  the  paper  to  be  issued  by 
the  Bank  of  England,  however  indefinite  such  issues  may  be,  and 
protected  as  the  bank  is  from  payment  of  its  creditors  in  specie,  by 
means  whereof  the  issues  and  the  profits  of  the  bank  may  still  be 
further  and  greatly  increased ;  that  various  members  of  this  house, 
are  members  likewise  of  the  corporation  of  the  Bank  of  England, 
and  proprietors  of  bank-stock ;  and  that  it  is  the  opinion  of  this 
house,  that  such  members  have  a  direct  interest  in  passing  this  bill 
into  a  law,  and  that  their  votes  in  favor  of  the  same  ought  to  be 
disallowed.  This  motion  was  decided  in  the  negative.^  The 
speaker  (Mr.  Addington)  in  giving  his  opinion,  said :  "  The  rule  was 
very  plain.  K  they  opened  their  journals,  they  would  find  it  estab- 
lished two  hundred  years  ago,  and  then  spoken  of  as  an  ancient 
practice,  that  a  personal  interest  in  a  question  disqualified  a  mem- 
ber from  voting.  But  this  interest,  it  should  be  further  under- 
stood, must  be  a  direct  pecuniary  interest,  separately  belonging 
to  the  persons  whose  votes  were  questioned,  not  in  common 
with  the  rest  of  his  majesty's  subjects  or  on  a  matter  of  state  pol- 
icy.' So  it  was,  that  on  the  canal  bill,  a  person  whose  name  is 
down  as  a  subscriber  could  not  vote."  '^ 

1845.  Another  case,  which  may  be  mentioned  under  this  head, 
occurred  in  the  house  of  representatives  of  Massachusetts,  on  the 
19lh  of  February,  1840,  while  Mr.  Speaker  Winthrop  presided  in 

1  Comm.  Jour.  LXXVI.  463.  2  Hans.  (1),  XX.  1011. 


Chap.  IV.]  disallowance  of  votes.  717 

that  house.  A  bill  to  increase  the  capital  stock  of  the  Boston  and 
Sandwich  Glass  Company  being  under  consideration,  it  was 
moved  to  amend  the  same  by  making  the  stockholders  for  the  time 
being  liable  in  their  private  capacity  for  the  debts  of  the  corpora- 
tion, and  this  amendment  having  been  rejected,  a  motion  was 
made  to  disallow  the  votes  of  three  members  who  were  stockholders 
in  the  corporation,  and  voted  against  ihe  amendment.  Mr.  Speaker 
Winthrop,  adverting  to  two  previous  decisions  of  his  own,  first, 
that  bank  directors  who  were  members  might  be  on  the  commit- 
tee on  the  memorial  of  the  banks  on  the  subject  of  the  suspension 
of  specie  payments ;  and  second,  that  members  who  were  stockhold- 
ers in  the  Western  Railroad  Corporation  could  not  be  excluded 
from  voting  in  favor  of  the  bill  for  granting  the  credit  of  the  State 
in  aid  of  the  enterprise  in  which  that  corporation  was  engaged,  de- 
cided in  an  elaborate  opinion,  which  was  sustained  by  the  house 
on  appeal  that  the  votes  of  such  stockholders  could  not  be  ex- 
cluded. 

1846.  It  seems  from  the  foregoing  and  other  cases,  first,  that 
when  a  question  is  pending,  the  right  or  duty  of  a  member  to  vote 
on  that  question  may  be  brought  forward  by  himself  or  any  other 
member  and  settled  by  the  house  before  that  question  is  taken ; 
secondly,  that  if  any  question  of  this  kind  is  made  after  the  division 
has  commenced  and  before  the  decision  of  the  house  is  announced, 
the  speaker  is  to  decide  it  peremptorily  as  a  question  of  order,  sub- 
ject to  the  future  revision  of  the  house  ;  third,  that  parties  named  in 
the  bill,  either  individually  or  collectively,  are  excluded  from  voting 
thereon,  whatever  their  interest  may  be ;  fourth,  that  members  who 
are  not  named  as  parties  must  be  shown  to  have  a  direct  pecuniary 
interest  in  a  bill,  in  order  to  preclude  them  from  voting  upon  it ; 
fifth,  that  if  this  interest  is  one  which  can  be  disclaimed,  it  is  suffi- 
cient to  do  so  either  before  or  after  a  division,  in  order  to  justify 
voting  on  thie  question ;  and  sixth,  that  the  interest  of  a  member, 
which  wiU  exclude  him  from  voting,  must  be  separate  and  distinct, 
and  not  merely  enjoyed  by  him  in  common  with  his  fellow-citi- 
zens. 

1847.  Since  the  foregoing  decisions  in  the  house  of  commons 
have  been  pronounced,  others  have  taken  place  in  that  body,  which 
confirm  the  principles  stated  in  the  preceding  paragraphs.^  Decis- 
ions have  also  occurred  there,  that  it  is  not  sufficient  to  disqualify 
a  member  from  votmg  against  a  bill,  that  he  has  a  direct  pecuniary 

1  May,  281,  282,  283,  284. 


718  LEGISLATIVE  ASSEMBLIES.  [PaRT   VI. 


» 


interest  in  a  rival  undertaking.^  In  two  of  these  cases,  the  member, 
whose  vote  was  in  question,  was  a  proprietor  in  a  similar  company 
ah-eady  established.^  In  another  case,  which  was  the  second  read- 
ing of  a  bill  for  the  incorporation  of  a  railway  company,  an  objec- 
tion was  taken  to  one  of  the  tellers  for  the  noes,  as  being  a  land- 
holder upon  the  line,  whose  property  would  be  injured;  but  a  mo- 
tion for  disallowing  his  vote  was  withdrawn.^ 

1848.  When  any  question  is  made,  as  to  the  disallowance  of  a 
vote,  the  member  himself  is  inquured  of  as  to  the  fact  alleged  as 
the  ground  of  the  disallowance ;  and,  after  the  motion  has  been 
made,  and  before  it  is  proposed,  he  should  be  heard  in  his  place, 
and  then  withdraw. 

1849.  If,  in  consequence  of  the  allowance  or  disallowance  of 
votes,  the  majority  is  thereby  changed,  and  the  decision  of  the 
house  is  reversed,  all  the  subsequent  proceedings  become  nuU  and 
void.4 

1  Comm.  Jour.  LXXX.  110;  Same,  CL  808;         »  Ct.mm.  Jour.  C.  488. 
Same.  C.  486.  *  Ante,  S  1832 

»  Comm.  Jour.  LXXX.  110;  Same,  CL  808. 


LAW  Ax\D  riiAcncE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    SEVENTH. 

OF   COMMITTEES    AND   THEIR   FUNCTIONS. 

(719) 


LAW  AND  PRACTICE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    SEYE^MH. 

OF   COMMITTEES   AND   THEIR  FUNCTIONS. 


1850.  CoMinTTEES  form  a  most  important,  and,  in  modern  times, 
an  indispensable,  part  of  the  machinery  of  parliamentary  procedure. 
They  are  of  three  kinds,  namely,  select  committees,  consisting  of  a 
small  number  of  members  specially  named,  committees  of  the 
whole,  consisting  of  all  the  members  of  the  house,  and  joint  com- 
mittees which  are  composed  of  members  of  each  house  sitting  and 
acting  together. 

1851.  Select  committees  are  appointed  for  a  great  variety  of 
purposes,  which  it  would  be  impossible  to  enumerate  in  detail ;  but, 
which  may  be  all  embraced  under  the  three  general  heads  of  ob- 
taining information  for  the  use  of  the  house,  as  to  matters-of-fact ; 
of  performing  acts  required  by  the  house  to  be  done  ;  and  of  form- 
ing and  expressing  opinions  on  matters  referred  to  their  considera- 
tion. In  other  words,  the  functions  of  select  committees,  —  as  of 
the  house  itself,  —  are  to  inquire,  to  think,  and  to  act.^  By  means 
of  committees  of  this  description,  a  legislative  body  consisting  of . 
many  members  is  enabled  to  do  many  things,  which,  from  its  num- 
bers, it  would  otherwise  be  unable  to  do ;  to  accomplish  a  much 

>  Committees  are  sometimes  said  to  be  the     poses,  also,  they  are  its  head  and  hands, 
eyes  and  ears  of  the  house:  for  certain  pur- 

61  (721) 


722  LEGISLATIVE  ASSEMBLIES.  [PaRT    VIL 

greater  quantity  of  business,  by  distributing  it  among  the  members, 
than  could  possibly  be  effected,  if  the  whole  body  were  obliged  to 
devote  itself  to  each  particular  subject;  and  to  proceed,  in  the  pre- 
liminary stages  of  a  measure,  with  that  degree  of  freedom,  which 
is  essential  to  its  being  properly  matui'ed. 

1852.  Committees  of  the  whole  house,  being  composed  of  all 
the  members,  possess  none  of  the  advantages  which  result  from  the 
employment  of  a  small  number  of  persons,  selected  with  express 
reference  to  the  particular  purpose  in  view ;  and,  at  the  present  day, 
the  principal  advantage,  which  appears  to  result  from  the  consider- 
ation of  a  subject  in  a  committee  of  the  whole  house,  rather  than 
in  the  house  itself,  consists  in  the  liberty  which  every  member  en- 
joys in  such  a  committee  of  speaking  more  than  once  to  the  same 
question. 

1853.  Select  committees,  and  committees  of  the  whole,  though 
in  many  respects  governed  by  the  same  rules  of  proceeding,  yet 
differ  from  one  another  in  so  many  essential  particulars,  that  it  wiU 
be  necessary  to  consider  them  separately.  Joint  committees,  though 
presenting  very  little  that  is  peculiar,  will  constitute  the  matter  of  a 
distinct  division  of  this  part. 


LAW  AND  PRACTICE 


07 


LEGISLATIVE    ASSEMBLIES. 


PAET    SEVENTH. 

OF  COMMITTEES  AND  THEIR  FUNCTIONS. 


FIRST  DIVISION. 

SELECT    COMMITTEES. 

1854.  The  subject  of  this  division  is  considered  in  the  eight 
followdng  chapters :  —  I.  Of  the  different  kinds  of  select  commit- 
tees; II.  Of  their  appointment;  III.  Of  their  power  and  author- 
ity; IV.  Of  then:  forms  of  proceeding;  V.  Of  instructions  to 
committees;  VI.  Of  the  intermediate  proceedings  in  the  house  be- 
tween the  appointment  of  the  committee,  and  previous  to  its 
report ;  VII.  Of  the  report ;  VIIL  Of  making  the  report  and  of 
proceedinsjs  thereon. 

^  °  (723) 


724  LEGISLATIVE    ASSEMBLIES.  [PakT    \''I1. 


CHAPTER    FIRST. 

OF  THE  DIFFERENT  KINDS  OF  SELECT  COMMITTEES. 

1855.  All  committees,  which  are  composed  of  a  certain  number 
of  members,  specially  named,  or  of  certain  classes  of  members,  as, 

,  ail  the  lawyers,  or  the  members  for  certain  counties,  the  individual 
not  being  specially  named,  are  select  committees,  as  distinguished 
from  those  which  consist  of  the  whole  house.  They  are,  however, 
known  by  different  appellations,  having  reference  either  to  the  sub- 
jects committed  to  them,  or  to  the  peculiar  powers  with  which 
they  are  invested,  or  to  the  constitution  of  the  committee. 

1856.  I.  A  committee,  which  is  appointed  beforehand,  for  the 
consideration  of  all  subjects  of  a  particular  class,  arising  in  the 
course  of  the  session,  is  denominated  a  standing  committee.  The 
committee  of  privileges,  and  that  on  printing,  in  the  house  of  com- 
mons, are  standing  committees.  By  the  system  of  rules  and  orders 
which  prevail  in  our  legislative  assemblies,  it  is  usually  provided 
that  each  one  shall  be  assisted  in  its  business,  by  one  or  more 
standing  committees,  corresponding  in  number  to  the  size  and 
importance  of  each  assembly.  They  vary  greatly,  of  course,  in 
different  legislative  bodies.  In  the  house  of  representatives  in 
congress,  the  rules  and  orders  provide  for  the  appointment  of 
twenty-eight  standing  committees  at  the  commencement  of  each 
session,  and  of  sLx  others  at  the  commencement  of  the  first  session, 
to  continue  during  the  whole  of  the  ensuing  congress. 

1857.  II.  The  term,  select  committee,  is  usually  applied  to  des- 
ignate a  committee  appointed  to  consider  a  particular  subject,  on 
the  occurrence  of  the  occasion  for  its  appointment,  as  where  a 
committee  is  appointed  to  consider  a  petition  or  memorial,  or  to 
make  inquiries  into  a  particular  subject.  Select  committees  are 
sometimes  turned  into  standing  committees  by  subsequent  ref- 
erences to  them,  relating  to  the  same  subject. 

1858.  III.  When  a  select  committee  is  appointed  of  certain 
members  specially  named,  with  authority  to  any  others,  who  think 
proper,  to  participate  in  the  business,  —  as  where  certain  members 
are  named,  and  it  is  then  added,  that  all  who  come  are  to  have 
voices,  —  the  committee  is  called  an  open  committee.  A  commit- 
tee of  this  description  might,  therefore,  if  the  whole  house  "should 


Chap.  IL]         appointment  of  select  commitiees.  725 

see  fit  to  attend,  be  equivalent  to  a  committee  of  the  whole,  as  to 
the  number  of  its  members.  But  it  would  diller  from  a  committee 
of  the  whole  in  this  respect,  that,  in  order  to  enable  the  committee 
to  proceed,  it  would  be  necessary  that  all  the  members  specially 
named,  or  as  many  of  them  as  were  fixed  for  the  quorum  of  the 
committee,  should  attend.  This  form  of  appointment,  formerly  in 
very  general  use,  has  been  resorted  to  but  seldom,  of  late  years,  on 
account  of  the  great  inconveniences  to  which  the  irregular  attend- 
ance of  members  on  committees  so  constituted  ^  gave  rise. 

1859.  IV.  A  secret  committee,  or,  as  it  is  generally  called,  a 
committee  of  secrecy,  is  a  select  committee,  which,  by  the  express 
direction  of  the  house,  conducts  all  its  proceedings  in  secret. 

1860.  V.  Besides  the  above,  which  are  the  more  general  appel- 
lations given  to  committees,  the  term  previous  is  sometimes  appUed 
to  a  counnittee,  in  order  to  distinguish  it  from  the  committee  to 
which  a  bill  is  referred  in  the  regular  course  of  proceeding ;  -  the 
phrase,  above  stairs,  is  used  to  denote  a  select  committee  as  distin- 
guished from  a  committee  of  the  whole ;  ^  and  a  committee  to 
investigate  any  subject,  and  report  the  facts  to  the  house,  especially 
if  the  subject  relates  to  the  conduct  of  any  person  in  a  public  office, 
is  usually  called  a  committee  of  inquiry.*  It  is  usual,  also,  to  des- 
ignate select  committees  by  names  derived  from  the  subjects  re- 
ferred to  them ;  as,  for  example,  the  select  committee  on  ship- 
wrecks,^ or  on  the  worldng  of  the  poor-law  system  in  Ireland.*" 


CHAPTER   SECOND. 

APPOINTMENT    OF    SELECT    COMMITTEES. 

1861.  In  order  to  the  appointment  of  a  select  committee,  it  is 
necessary,  in  the  first  place,  that  the  house  should  resolve,  on  mo- 
tion, that  a  select  committee  be  appointed  for  the  purpose  in  view. 

»  Piirl.  Heg.  XXVII.  13, 14;  Same,  XLI.  384.        *  Hats.  HI.  36,  note;  Hans.  (3),  XXX.  796, 
«  Pari.  Beg.  XVHI.  167,  169,  171.  796,  799,  1452;  Same,  (1),  XXIX.  637. 

»  Hans.  (1),  XXVHI.  485;  Pari.  Reg.  XXVH.         »  Hans.  (3),  LXVII.  117. 
12  «  Hans.  (3),  LXXIV.  1188,  1200;   May  14, 

1844. 

61* 


726  '     LEGISLATIVE   ASSEMBLIES.  [PaRT    VIL 

Having  come  to  this  resolution,  the  next  thing  in  order  is  to  fix 
upon  the  number  of  which  the  committee  shall  consist*/  then,  the 
mode  in  which  the  committee  shall  be  appointed ;  and,  lastly,  the 
tinie  of  its  appointment.  These  particulars  may  all  be  embraced 
in  the  motion  for  the  committee ;  but  it  is  a  more  orderly  proceed- 
ing to  move  them  separately;  or,  at  all  events,  to  move  for  the 
committee  in  a  distinct  motion,  for  if  this  fails,  the  others  are  of 
com-se  unnecessary ;  and,  they  may  be  all  moved  immediately  in 
their  order,  and  the  committee  appointed,  unless  there  is  some 
order,  resolution,  or  vote,  with  which  such  a  proceeding  would  be 
inconsistent.  How  far  any  such  restrictions  exist  wWl  be  presenlly 
seen.  The  motion  for  the  committee,  being  debated  and  decided 
like  any  other  motion,  requires  no  further  notice ;  the  points  proper 
to  be  considered  are,  first,  as  to  who  may  be  of  a  committee ; 
second,  as  to  the  number  of  which  a  committee  is  to  consist ;  third, 
as  to  the  time ;  and,  fourth,  as  to  the  manner  of  the  appointment 
of  a  committee.  Where  the  rules  and  orders  of  any  particular 
assembly  provide  for  the  appointment  of  standing  committees,  such 
appointments  ought  regularly  to  be  preceded  by  a  resolution  to  that 
effect. 

Section  I.     As  to  who  mat  be  of  a  Committee. 

1862.  It  appears  to  have  been  an  ancient  rule  of  the  house  of 
commons,  that  no  member  who  spoke  against  the  body  or  sub- 
stance of  any  bill,  or  other  thing  proposed  in  the  house,  should  be  of 
a  committee  for  that  business  ;  '^  but  this  rule,  so  far  as  it  relates  to 
the  appointment  of  committees  by  name,  must  necessarily  have 
been  subordinate  to  the  convenience  of  the  house ;  and,  in  fact,  it 
appears  to  have  been  disregarded,  whenever  the  convenience  of  the 
house  required  the  appointment  of  members  so  situated.^  The 
rule  seems  also  quite  as  much  intended  to  operate  upon  the  mem- 
bers themselves,  and  to  restrain  them  from  taking  a  part  in  the 
business  of  committees  to  which  they  are  opposed,  under  the  gen- 
eral provision,  that  all  who  come  to  the  committee  have  voices , 
though  they  might,  without  impropriety,  be  present  at  the  com- 
mittee.* 

1863.  It  is  an  established  rule  of  parliamentary  law,  that  every 
member  who  is  returned  of  record,  is  immediately  ehgible  to  ap- 

1  Hans.  (1),  XXVL  404.  «  Comtn.  Jour.  H.  14. 

»  Comm.  Jour.  IL  14.  *  Grey,  YI.  373. 


Chap.  11.]  appointment  of  select  committees.  727 

pointment  on  a  committee,  even  before  he  has  been  qualified  by 
taking  ihe  oaths  at  the  clerk's  table  ;  that,  whilst  ho  continues  a 
member,  in  fact,  his  eligibihty  remains,  notwithstanding  he  may 
have  declared  his  intention  to  secede  from  the  house,  or  may  be 
opposed  to  the  matter  referred  to  the  committee  ;  and  that  he  can- 
not discharge  himself  from  his  obligation  as  a  member  to  obey  the 
commands  of  the  house,  by  declining  or  refusing  to  serve  on  the 
committee,  or  be  discharged  from  the  committee  in  any  other  man- 
ner than  by  a  vote  of  the  house  for  that  purpose.  When  members 
of  a  committee  die  or  resign,  or  otherwise  cease  to  be  members  of 
the  house,  or  they  have  a  right  to  decline  serving,  or  are  excused  by 
the  house,  at  their  own  request  or  otherwise  from  serving  on  the 
committee,  their  places  on  the  same  are  to  be  filled  up,  on  motion 
and  resolution  for  the  purpose,  in  the  same  manner  that  the  com- 
mittee was  originally  appointed. 

1864.  Members  who  are  personally  interested  in  'the  matter  re- 
ferred to  the  consideration  of  a  committee,  ought  not,  of  course,  to 
be  appointed.  If  appointed,  they  should  take  no  part  in  the  pro- 
ceedings ;  and  should,  as  soon  as  possible,  be  discharged  from  fur- 
ther attendance,  and  others  substituted  in  their  places. 


Section  IL     As  to  the  Number  of  Members. 

1865.  The  number,  of  which  a  select  committee  of  the  house  of 
commons  ought  regularly  to  consist,  in  the  earlier  periods  of  par- 
liamentary history,  does  not  appear  to  have  been  fixed  by  any 
general  rule.  As  many  members  were  named  as  the  house  thought 
proper ;  and  this  appears  to  have  been  the  only  limit.  It  is  said 
by  Rushworth,  that  the  grand  committee  for  privileges  and  elections 
"  had  wont  to  consist  of  forty  members ; "  but  that,  on  the  occasion 
of  which  he  was  then  ^^Titing,  the  clerk,  INIr.  Elsing,  having  inad- 
vertently taken  down  forty-seven  names,  the  house  refused  to 
reduce  the  committee  to  forty,  and  allowed  the  whole  to  stand.  In 
the  statement  of  forty  as  the  usual  number  of  which  the  committee 
of  privileges  and  elections  had  been  wont  to  consist,  the  learned 
collector  appears  to  have  been  mistaken ;  for,  in  several  of  the  par- 
liaments of  James  I.  and  Charles  I.,  the  committees  of  privileges 
consisted  of  more  than  double  that  number.  In  later  times,  it  is 
said  that  the  number  of  members  for  a  select  committee  was  fixed 
at  t\venty-one.     If  so,  it  was  a  rule  frequently  departed  from  ;  for 


{ 

728  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII. 

the  journals  contain  abundant  examples  of  committees  composed 
of  a  larger,  and  often  of  a  smaller,  number  of  members. 

1866.  It  is  now  settled  in  the  house  of  commons,  by  a  rule 
recently  adopted,  "  that  no  select  committees  shall,  without  previous 
leave  obtained  of  the  house,  consist  of  more  than  fifteen  members  ; 
that  such  leave  shall  not  be  moved  for  without  notice  ;  and  that  in 
the  case  of  members  proposed  to  be  added  or  substituted,  after  the 
first  appointment  of  the  committee,  the  notice  shall  include  the 
names  of  the  members  proposed  to  be  added  or  substituted."  ^ 

1867.  Previous  to  the  adoption  of  this  rule,  members  might  be 
added  at  any  time  to  a  select  committee,  unless  the  number  of 
which  it  was  to  consist  had  been  previously  fixed  by  a  resolution 
of  the  house ;  in  which  case,  the  number  could  not  be  increased, 
though  vacancies  occurring  in  the  committee  might  be  filled,  and 
new  members  might  be  substituted  in  the  place  of  others  discharged 
from  further  attendance.^  The  number  of  every  committee  is  now 
fixed  either  expressly  by  the  resolution  of  the  house,  or  tacitly  by 
the  rule.  In  our  legislative  assemblies,  it  is  usual  to  provide  before- 
hand, by  a  special  rule,  unless  otherwise  directed  in  a  particular 
case,  of  what  number  such  committees  shall  consist.  K  the  num- 
ber is  not  thus  regulated  beforehand,  it  is  to  be  fixed  by  the  house 
itself,  on  motion  and  vote,  immediately  after  the  resolution  for  the 
appointment  of  the  committee.^ 

Section  III.     As  to  the  Time  of  Appointment. 

1868.  A  rule,  recently  adopted  in  the  house  of  commons,  pro- 
vides "that  every  member  intending  to  propose  a  select  committee 
shall,  one  day  next  before  the  nomination  of  such  committee,  place 
on  the  notices  the  names  of  the  members  intended  to  be  proposed 
by  him  to  be  members  of  such  committee."  *  Before  the  existence 
of  this  rule,  the  members  of  a  select  committee  might  be  moved 
for,  and  the  committee  appointed,  immediately  upon  the  passing  of 
the  resolution  for  its  appointment.  Now  this  can  only  be  done,  in 
cases  coming  within  the  rule,  provided  notice  has  been  given  of  the 
names  intended  to  be  proposed  on  the  committee,  one  day  at  least 
previous  to  the  resolution  for  its  appointment. 

1869.  This  rule,  like  all  others  of  the  same  character,  is  neces- 

1  May,  297;   Coram.  Jour.  XCL  30;  Same         ^  Cong.  Globe,  XIL  240. 
XCII.  8.  *  Coram.  Jour.  XCIII.  221 :  May,  297. 

a  Hans.  (1),  XXXVI.  899.  906. 


Chap.  11.]         appointment  of  select  committees.  729 

sarily  subject  to  an  exception  in  cases  in  which,  the  privileges  of 
the  house  being  concerned,  delay  is  not  admissible. 


Section  IV.     As  to  the  Manner  of  Appointment  of  a  Select 

Committee. 

1870.  In  the  selection  of  members  for  service  on  committees, 
there  seem  to  be  four  principal  methods,  which  may  be  adopted, 
either  simply,  or  in  some  modified  form,  namely,  Jirst,  the  names  of 
members  to  compose  the  committee  may  be  moved  and  put  to  the 
question,  in  the  same  manner  with  other  propositions  ;  second,  the 
committee  may  be  chosen  by  ballot ;  third,  it  may  be  appointed  by 
the  speaker,  or  other  members  selected  for  the  purpose,  either  abso- 
lutely, or  subject  to  the  approval  or  rejection  of  the  house ;  and 
fourth,  the  members  of  the  committee  may  be  designated  by  lot. 
The  last  of  these  methods  was  formerly  practised  in  a  modified 
form,  in  the  appointment  of  election  committees,  but  is  now  laid 
aside.  The  third  mode  is  applicable  in  the  British  parliament,  par- 
ticularly to  the  appointment  of  election  committees  as  now  consti- 
tuted, and  of  committees  on  private  bills ;  and  in  this  countiy, 
usually  to  all  select  and  standing  committees.  These  three,  being 
the  methods  most  usually  practised,  wiU  now  be  described.  Besides 
these,  there  is  the  method  sometimes  practised  of  oral  or  viva  voce 
suffrage,  which  will  be  shortly  described. 

Article  I.     Appointment  of  a  Select  Committee  on  Motion. 

1871.  When  no  other  method  has  been  resolved  on  by  the  house, 
the  regular  mode  for  the  appointment  of  a  committee  is,  by  moving 
the  names  of  the  members  to  compose  it,  and  putting  them  to  the 
question,  in  the  ordinary  course  of  proceeding.  Anciently,  the 
practice  seems  to  have  been,  for  the  members  of  the  house  to  call 
out  names  for  the  committee,  and  for  the  clerk  to  take  them  down 
as  they  struck  his  ear,  without  any  formal  motion  or  question,  until 
the  requisite  number  had  been  obtained. 

1872.  It  afterwards  became  the  established  practice  for  the 
member,  upon  whose  motion  a  committee  had  been  ordered,  to 
move  the  names  of  the  members  to  compose  it, — being,  of  course, 
of  his  own  selection ;  his  own  name  being  among  them,  and  per- 
haps the  first  named  on  the  list.  If  he  felt  any  delicacy  in  moving 
his  own  name,  the  motion  might  be  made  by  some  friend ;  as,  on 


730  LEGISLATIVE   ASSEMBLIES,  [PaRT    VIL 

the  occasion  of  the  appointment  of  the  committee  to  prepare 
articles  of  impeachment  against  Lord  Melville,  which  had  been 
ordered  on  the  motion  of  Mr.  "WTiitbread,  that  gentleman  was  first 
appointed  one  of  the  committee,  on  the  motion  of  Lord  Temple, 
and  then  on  the  motion  of  Mr.  "Whitbread,  the  other  members  of 
the  committee  (Lord  Temple  being  one)  were  appointed.^ 

1873.  When  committees  are  appointed  on  motion,  the  practice 
is,  for  the  member  who  moves  the  names  to  read  over  his  list  in  the 
first  place,  and  then  to  move  each  of  the  names  separately,  —  the 
form  of  the  motion  being,  that  such  a  member  be  of  the  com- 
mittee. On  this  motion  it  is  competent  for  those  opposed  to  the 
particular  member  named,  not  only  to  vote  in  the  negative  of  the 
motion,  but  also  to  move  an  amendment  of  it  by  leaving  out 
the  name  of  the  member  moved,  for  the  purpose  of  inserting  that 
of  some  other  member.  So,  those  who  are  opposed  to  the  appoint- 
ment of  the  committee  may,  on  this  motion,  move  an  amendment 
by  leaving  out  aU  except  the  first  words  of  the  motion,  in  order  to 
insert  a  motion  that  the  order  of  the  day  for  the  appointment  of  the 
committee  be  read,  for  the  purpose  of  being  discharged ;  ^  or,  an 
amendment  may  be  moved,  by  leaving  out  all  except  the  first  words 
of  the  motion,  in  order  to  insert  a  motion  for  choosing  the  com- 
mittee by  ballot.3  Where  this  method  of  appointing  a  committee 
is  adopted,  the  members  are  necessarily  chosen  by  absolute  majori- 
ties. 

1874.  The  moving  of  the  names  of  members  to  constitute  .a  com- 
mittee, which  is  conceded  by  parliamentary  usage  to  the  member 
upon  whose  motion  the  committee  has  been  granted,  is,  of  course,  a 
matter  of  courtesy,  and  not  of  right ;  every  other  has  the  same 
right  to  move  the  committee ;  and  some  one  would  doubtless  be 
found  to  do  so,  if  necessary  to  prevent  the  appointment  of  improper 
persons,  or  if  the  list  made  out  and  moved  by  the  mover  should  be 
rejected  by  the  house. 

1875.  If  the  measure,  in  reference  to  which  a  committee  has  been 
ordered,  should  be  taken  out  of  the  hands  of  the  mover  and  his 
friends,  who,  in  such  an  event,  would  no  longer  desire  to  proceed 
with  the  business,  the  moving  of  the  committee  devolves  upon  the 
successful  party ;  as,  on  the  occasion  of  the  defeat  of  the  ministry, 
on  the  motion  for  an  address  in  answer  to  the  queen's  speech, 


1  Hans.  (1),  V.  618.  »  Hans.  (1),  IV.  426,  430,  647,  648. 

a  Hans.  (3),  LXXIV.  1188,  1200;  May  14, 
1844. 


Chap.  IL]         appointment  of  select  coaonTTEES.  731 

Aug.  1841,  by  the  adoption  of  the  amendment  moved  by  the  oppo- 
sition, lord  John  Russell  suggested  that  the  committee  should  be 
named  by  the  honorable  gentleman,  who  had  moved  the  amend- 
ment, and,  thereupon,  Mr.  Wortley  moved  the  names  of  the  mem- 
bers for  the  committee.^ 

1876.  When  a  committee  has  been  thus  appointed,  it  may  be 
afterwards  enlarged,  by  the  addition  of  other  members  appointed  in 
the  same  manner  ;2  or  members  originally  appointed  maybe  dis- 
charged from  further  attendance  ;  ^  or  members  may  be  discharged 
and  others  appointed  in  their  room.* 

1877.  In  regard  to  the  discharge  of  members  from  further  attend- 
ance on  a  committee,  which  is  the  same  thing  in  fact,  as  rescinding 
the  order  for  their  appointment;  —  though  the  house  may  undoubt- 
edly exercise  such  control  over  their  own  members  as  they  may  think 
proper ;  —  it  was  said  by  Mr.  Speaker  Manners  Sutton,  on  a  proposi- 
tion to  discharge  a  member  from  a  committee,  on  the  ground  that  he 
could  not  attend,  for  the  purpose  of  substituting  another,  "  that  he 
could  not  find  any  trace  of  such  having  been  the  practice ;  he  did  not 
perceive  that  any  member  had  been  left  out,  except  it  was  by  abso- 
lute parliamentary  disqualification,  or  physical  impossibility  of  at- 
tendance ;  as  to  any  other  disqualification  of  attendance,  there  was, 
so  far  as  his  knowledge  extended,  no  account  of  any  case  having 
arisen."  5  In  Sir  Joseph  Jekyl's  case,  who  was  appointed  on  a 
committee,  before  he  had  taken  the  oaths,  it  was  decided  by  the 
house,  on  a  division,  that  he  was  not  thereby  disqualified  from  serv- 
ing on  the  committee,  and  the  house  accordingly  refused  to  dis- 
charge him  and  substitute  another  j^  nor  is  it  any  disqualification 
of  a  member,  that  he  declines  serving;"  or  that  he  has  declared  his 
Intention  to  secede  from  the  house ;  ^  or  that  he  was  a  member  of 
the  administration,  in  which  the  abuses  are  alleged  to  have  taken 
place,  which  it  was  the  business  of  the  committee  to  investigate.^ 
It  is  a  compendious  form  of  this  mode  of  appointing  a  committee, 
for  the  house  to  resolve,  on  motion,  that  the  committee  consist  of 
all  the  lawyers  of  the  house,^'^  or  of  all  the  members  who  are  of  the 
privy  council,^  1  or  of  all  the  members  for  certain  comities  or  places,^ 

1  Hans.  (3),  LIX.  450.  '  Hans.  (3),  XLIH.  1230,  1234. 

»  Pari.  Reg.  XL.  4G2,  500,  601.  «  Pari.  Keg.  L  314. 

»  May,  298.  »  Hans.  (1),  IV.  511,  517,  530. 

«  Hans.  (3),  XLHI.  1230,  1234.  »»  Romilly,  303;  Comm.  Jour.  L  320. 

»  Hans.  (1),  XXXVn.  200,  201,  202,  203,        "  Comm.  Jour.  169,  172. 
204.     See  also  Cong.  Globe,  XV.  95,  124.  "  Comm.  Jour.  326;     Romilly,  803.     See 

•Comm.    Deb.    VL   19,    20;     Hans.  (1),     also  J.  of  C.  U.  269. 
XXXVII.  200,  201,  202,  203,  204.    See  also 
Coug.  Globe,  XXL  1464. 


732  LEGISLATIVE   ASSEMBLIES.  [PaRT  VII. 

or  of  all  the  members  that  have  spoken,  or  that  a  select  committee 
of  a  former  session,  or  one  which  has  already  discharged  its  func- 
tions, be  revived,  for  the  purpose  of  constituting  the  committee.^ 
It  is  equally  competent,  of  course,  to  constitute  a  part  of  the  com- 
mittee in  this  manner ;  -  the  residue  being  appointed  in  the  usual 
way.  Where  a  select  committee  is  revived,  if  any  of  the  members 
have  vacated  their  seats,  or  have  become  disqualified,  other  mem- 
bers may  be  substituted  in  their  places.^ 

1878.  In  the  house  of  commons,  certain  rules  have  been  lately 
introduced,  which  require  that  every  member,  intending  to  propose 
a  select  committee,  or  to  move  the  addition  or  substitution  of  mem- 
bers on  a  committee  aheady  appointed,  shall  give  previous  notice 
of  the  names  intended  to  be  proposed  by  him.*  By  another  rule 
also,  which  is  not  imperative,  it  is  recommended  to  every  member 
moving  for  the  appointment  of  a  select  committee,  to  ascertain 
previously  whether  each  member  proposed  to  be  named  by  him  on 
such  committee,  wiU  give  his  attendance  thereupon.-^ 

1879.  The  practice  of  allowing  the  mover  of  a  proposition  him- 
self to  nominate  the  committee  for  its  consideration,  may  seem  at 
first  sight  to  be  liable  to  great  abuse,  as  amounting  in  point  of  fact 
to  the  exercise  of  a  sort  of  patronage.^  But  it  must  be  recollected, 
that  the  house,  by  adopting  the  resolution  for  the  committee,  has 
signified  its  willingness  that  the  subject  should  be  so  considered  or 
investigated ;  that  the  member  nominating  the  committee  must  be 
supposed  to  feel  as  strong  an  interest  in  the  proper  consideration 
of  the  subject  as  any  one,  and  also  to  possess  or  to  be  willing  to 
obtain  the  knowledge  necessary  to  enable  him  to  decide  upon  the 
qualifications  of  the  members  whom  he  selects ;  that  if  improper 
persons  should  be  proposed,  the  house  has  it  in  its  power  to 
reject  them  and  substitute  others ;  and,  lastly,  that  if  the  proposed 
investigation  is  of  a  political  character,  and  opposed  to  the  tactics 
of  the  party  in  power,  or  if  the  list  of  members  does  not  contain  a 
proper  proportion  of  the  members  of  that  party,  the  government 
have  it  in  their  power  to  take  the  matter  into  their  own  hands. 

1  Pari.  Reg.  I.  314;     Hans.  (1).  XXXVL         <  May,  297;  Coram.  Joxir.  XCI.  30;    Same, 
899,  906.    See  also  J.  of  C.  VIIL  4;  Same,  IX.      XCIL  8;  Same,  XCIIL  221. 

6;  J.  of  S.  70,  85.  5  May,  297;  Hans.  (3),  XXXIX.  1023, 1024, 

2  Hans.  (1),  XXXVI.  899,  946.  1025,  1026;  Same,  XLIII.  1126. 

»  Pari.  Reg.  L  314.  «  Hans.  (3),  XXXIX.  1023, 1024,  1025, 1026 


Cbap.  IL]         appointment  of  select  committees.  733 

Article  II.     Appointment  of  a  Select  Committee  by  Ballot. 

1880.  When  this  mode  of  proceeding  is  to  be  adopted  in  tha 
house  of  commons,  the  house,  having  first  resolved  that  the  subject 
in  question  be  referred  to  the  consideration  of  the  committee,  and 
having  also  resolved  upon  the  number  of  which  the  committee 
shall  consist,  next  resolves,  "  that  the  committee  be  chosen  by  way 
of  balloting."  The  time  for  the  balloting  is  then  fixed  by  an  order, 
"  that  the  members  of  the  house  do,  upon  [a  day  named,  at  a  given 
hour,]  prepare  lists  to  be  put  into  glasses,  of  [so  many]  persons' 
names  to  be  the  said  committee." 

1881.  On  the  day,  and  at  the  time,  mentioned  in  the  order,  the 
order,  on  motion,  is  read ;  and  the  sergeant-at-arms  then  receives 
direction,  by  an  order  of  the  house,  "  to  go  with  the  mace  into 
Westminster  Hall,  and  into  the  court  of  requests,  and  places  adja- 
cent, and  summon  the  members  there  to  attend  the  service  of  the 
house."  On  his  return,  the  clerk  and  clerk  assistant  go  on  each 
side  of  the  house  with  glasses,  to  receive  from  the  members,  except 
the  speaker,  the  lists  of  persons'  names  to  constitute  the  committee. 
When  they  have  received  the  lists,  they  bring  them  up  to  the  table, 
and  a  committee,  nominated  by  the  speaker,  is  then  appointed  to 
examine  the  lists,  and  report  to  the  house,  upon  which  of  the  per- 
sons balloted  for,  to  the  requisite  number,  the  majority  ialls.  The 
committee  is  usually  dii-ected  to  withdraw  immediately  into  the 
committee  chamber. 

1882.  When  the  scrutineers,  as  the  members  of  the  committee  are 
denominated,  have  examined  the  lists,  they  report  by  one  of  their 
number,  usually  the  first  named,  the  names  of  the  requisite  number 
of  persons  upon  whom  the  majority  of  votes  has  fallen,  together 
with  the  number  of  votes  received  by  each,  and  the  speaker  an- 
nounces the  result.  The  majority  necessary  to  an  election  is  not 
an  absolute  majority  of  all  the  persons  voting,  but  only  a  plurality ; 
and  if  there  are  several  persons,  who  all  have  the  same  number  of 
votes,  and  the  whole  would  make  more  than  the  number  fixed  for 
the  committee,  the  speaker  gives  a  casting  vote  for  the  election  of 
the  requisite  number.  Thus,  if  on  a  balloting  for  thirteen  members, 
it  should  appear  that  twelve  were  elected  by  majorities,  and  that 
the  next  highest  number  of  ballots  given  in  was  received  by  three 
or  more  persons,  the  speaker  could  then  give  his  casting  vote,  as  in 
other  cases,  for  one  of  the  three.^     Whetlier  in  any  of  the  leglsla- 

»  Comm.  Deb.  XIIL  21G,  217;  Coram.  Jour.  XXIV.  154. 

62 


734  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIL 

tive  assemblies  of  this  country,  an  absolute  majority  is  required,  oi 
a  bare  plurality  is  permitted,  in  the  election  of  committees,  must, 
in  the  absence  of  any  rule  on  the  subject,  depend  upon  the  general 
law  or  usage  of  the  particular  State  to  which  such  assembly  be- 
longs. Sometimes  it  is  provided  by  a  special  rule,  that  after  one 
or  two  unsuccessful  attempts  to  elect  by  absolute  majorities,  at  suc- 
ceeding trials  pluralities  only  shall  be  requisite. 

1883.  If  the  scrutineers  are  in  doubt  as  to  whether  a  particular 
vote  should  be  allowed  or  not,  they  include  it  in  the  report,  and 
state  the  fact,  leaving  it  to  the  determination  of  the  house;  in 
which  case,  if  the  house  do  nothing  in  reference  to  the  subject,  the 
proceeding  of  the  committee  is  thereby  sanctioned.^ 

1884.  When  an  election  takes  place  by  ballot  in  any  of  our  legis- 
lative assemblies,  a  committee  is  usually  appointed,  who  coUect 
and  make  a  list  of  the  votes  given  in  which  they  report  to  the  pre- 
siding officer,  who  thereupon  determines  and  declares  the  result, 
first  giving  his  casting  vote,  if  necessary,  or  voting  as  required  by 
the  rules  of  the  assembly. 

1885.  A  balloted  committee,  the  number  of  which  is  fixed  by 
a  resolution  of  the  house,  is  no  more  susceptible  of  enlargement, 
than  a  committee  appointed  on  motion,  and  for  the  same  reason. 

1886.  K  vacancies  occur,  from  any  cause,  in  a  balloted  commit- 
tee, they  must  be  filled  in  the  same  manner  in  which  the  committee 
was  originally  appointed ;  inasmuch,  as  the  house  having  come  to 
a  resolution,  that  the  committee  be  chosen  by  way  of  balloting,  no 
other  method  can  be  resorted  to  without  violating  the  order  of  the 
house. 

1887.  In  regard  to  discharging  any  of  the  members  of  a  balloted 
committee,  from  further  attendance  upon  it,  on  account  of  some 
parliamentary  disqualification,  or  physical  impossibility  of  attend- 
ing, it  does  not  appear,  that  a  balloted  committee  stands  upon  a 
different  footing  from  a  nominated  committee ;  for  two  reasons, 
firsts  that  the  ordinary  mode  of  proceeding  seems  to  be  the  only 
appropriate  one ;  and  secondly^  that  the  question  presented  by  a 
motion  for  the  discharge  of  a  member  on  the  grounds  mentioned, 
is  wholly  different  from  that  which  arises  on  the  election  of  a 
member. 

1888.  The  discharge  of  a  member,  however,  by  motion  and  vote, 
in  the  ordinary  course  of  proceeding,  might  give  rise  to  great  incon- 
venience ;  inasmuch  as  if  the  number  of  votes  by  which  a  member 

1  Coram,  Jour.  XXIL  39. 


Chap.  II.]         appointment  of  select  committees.  735 

had  been  elected  should  be  less  than  an  absolute  majority,  as  it 
might  frequently  be,  it  would  be  in  the  power  of  thor^e  who  voted 
for  other  candidates,  and  therefore  against  him,  to  annul  his  election 
by  discharging  him  from  the  committee. 

1889.  When  it  is  proposed  to  discharge  one  member  from  a 
balloted  committee,  for  the  purpose  of  substituting  another,  the 
proceeding  is  objectionable  in  reference  to  both  parts  of  it,  on  the 
ground  that,  by  the  order  of  the  house,  the  committee  is  to  be  ap. 
pointed  by  ballot.  It  is  objectionable  as  to  the  discharge,  because 
it  is  not  proposed,  upon  the  ground  of  any  disqualification,  but 
merely  because  the  mover  prefers  the  one  member  to  the  other,  for 
the  committee  ;  and  it  is  objectionable,  as  to  the  substitution  of  the 
new  member,  because  every  member  of  the  committee  ought,  by 
the  order  of  the  house,  to  be  appointed  by  ballot.^ 

Article  III.     Other  Modes  of  Appointment. 

1890.  Besides  the  modes  of  appointing  committees  above  de- 
scribed, such  others  may  of  course  be  adopted,  in  special  cases,  as 
the  house  may  at  any  time  think  proper ;  as,  for  example,  where 
two  members  were  appointed  by  nomination,  and  the  others  were 
chosen  by  ballot,-  or  where  twenty-one  members  were  chosen  by 
ballot,  and  each  of  two  members  nominated  by  the  house,  was 
allowed  to  strike  off  four  from  that  number.'^ 

1891.  When  select  committees  are  appointed,  whether  occasional 
or  standing,  the  members  thereof  are  doubtless  required  to  take 
notice  of  their  appointment  as  such,  as  of  other  proceedings  of  the 
house  of  which  they  are  members,  and  proceed  with  the  bills  re- 
ferred to  them  ;  but  the  clerk  ought  regularly  to  furnish  each  one 
with  a  certified  copy  of  the  record  of  his  appointment.  When  a 
select  committee  is  appointed,  it  is  ordinarily  enough  if  the  names 
of  all  the  members  appear  in  one  certificate.  Papers  referred  to  a 
committee,  may  be  delivered  by  the  clerk  to  any  member  of  it ;  but 

1  Hans.    (1),    IV.    511,    517,    536;    Same,  being  made,  Mr.  Speaker  Manners  Sutton  de- 

XXXVn.  190  ;  Same,  200,  201,  202,  203,  204.  clared  it  to  be  irregular,  on  tlie  ground  "  that 

April  30, 1805,  on  the  report  of  the  scrutineers  the  putting  one  name  in  the  room  of  another, 

being  read  for  the  committee  on   the  10th  would  be,  in  a  maimer,  jumping  over  several 

Naval  Ropoii,  Mr.  Whitbread  moved,  that  the  of  the  principal  orders;  and  first,  that  one  that 

name  of  Lord  Ciistlereagh  be  struck  out,  and  the  committee  be  appointed  by  ballot."    Ilaus. 

that  of  Mr.  Baker  substituted   in   its   place.  (1),  200,  201,  202,  203,  204. 

This  motion  was  debated  at  length,  without  -  Comm.  Jour.  LXXXVIII.  144,407;  May, 

any  objection  being  made  to  it  in  point  of  298. 

order,   but   was    negatived.      Hans.   (1),   IV.  ^  Comm.  Jour.  LXXXVIII.  160,  475;  May. 

611,  517,  536.    Feb.  6,  lvS18,  a  similar  motion  298. 


736  LEGISLATIVE    ASSEMBLIES.  [PaRT    VII 

it  is  usual  to  give  such  papers  to  the  first  named,  or  to  whomsoever 
else  acts  as  chairman  of  the  committee.^ 

1892.  Of  all  the  infinite  variety  of  methods  which  may  be 
adopted  and  practised  in  the  appointment  of  committees,  two  only 
need  be  mentioned,  particularly,  as  peculiar  to  the  legislative  assem- 
blies of  this  country.  The  first  of  these,  which  prevails  very  ex- 
tensively with  us,  and  is  in  more  frequent  use  than  any  other 
method,  is  the  appointment  of  committees,  both  permanent  and 
occasional,  by  the  speaker.  This  it  is  which  makes  the  presid- 
ing officer  so  much  of  a  pofitical  functionary,  and  leads  gen- 
erally to  a  political  struggle  for  the  possession  of  his  office.  It 
need  hardly  be  observed,  that  in  the  appointment  of  committees, 
the  principles  of  party  are  preserved,  and  that,  in  general,  while  aU 
parties  are  duly  represented,  a  controlling  influence  is  given  to  the 
predommating  party  in  the  constitution  of  every  committee.^  In 
exercising  the  duties  of  his  office  in  this  respect,  the  speaker  is  not 
obliged  to  proceed  immediately,  but  may  take  such  time  as  he  may 
think  proper  for  the  election  and  appointment  of  a  committee. 
The  only  other  method,  which  is  occasionally  practised  with  us,  is 
that  of  the  vivd  voce  or  oral  suffrage.  Li  making  an  election  by 
this  mode,  the  clerk  calls  the  roll  of  the  house,  and  a  committee  or 
tellers  receive  and  report  the  result  of  the  votes. 


CHAPTER   THIRD. 

POWEE  AlSfD  AUTHOKITY  OF  SELECT  COMMITTEES. 

1893.  The  functions  of  committees,  in  reference  to  the  subject- 
matter  referred  to  their  consideration,  and  the  powers  conferred  on 
them  for  the  performance  of  the  duties  wdth  which  they  are 
charged,  emanate  directly  from  the  house  of  which  they  are  mem- 
bers, and  depend  entirely  upon  the  authority  originally  vested  in 
them,  and  such  particular  instruction  as  they  may  subsequently 
receive. 

1894.  The  appointment  of  a  committee  usually  comprises  two 
things, y^rsi,  the  subject  refen'cd  to  the  consideration  of  the  com- 

1  Jefferson's  Manual,  §  XXVL  *  Appendix,  XIV. 


Chap.  III.]      power  and  authoritt  of  committees.  737 

mittee ;  and,  secondly^  the  powers  with  which  the  committee  is  in- 
vested for  the  discharge  of  its  duties.  Hence,  the  powers  of  a 
committee  relate  either  to  the  matter  about  wliich,  or  to  the  manner 
in  which,  its  functions  are  to  be  exercised. 


Section  I.  Of  the  Powers  with  which  Committees  are  in- 
vested, TO  enable  them  to  discharge  the  Duties  of  their 
Appointment  ;  or,  in  other  words,  of  the  incidental  Powers 
of  Committees. 

Article  I.     ^5  to  the   Time  of  Sitting. 

1895.  The  time  for  a  committee  to  assemble,  in  the  first  instance, 
is  always  fixed  by  the  house ;  otherwise  the  members  would  have 
no  authority  to  meet  as  a  committee.  But,  having  once  met,  agree- 
ably to  the  order  of  the  house,  if  a  committee  should  be  unable  to 
finish  the  business  at  that  meeting,  it  may  adjourn  to  another  lime, 
and  so  on  untU  the  business  is  finished.  If  it  should  previously 
adjourn  without  day,  there  must  then  be  a  new  order  for  it  to  as- 
semble and  proceed.i  According  to  the  practice  which  prevails 
here,  it  is  not  usual  for  the  time  of  the  first  meeting  of  a  committee 
to  be  appointed  by  the  house.  The  committee  meets  at  some  time 
when  the  house  is  not  in  session,  on  the  requisition  of  the  member 
who  acts  as  chairman,  or  of  some  other  member  duly  authorized,^ 
in  one  of  the  rooms  appropriated  to  the  use  of  committees. 

1896.  It  is  an  expedient  sometimes  resorted  to  by  committees, 
with  a  view  to  dispose  of  the  business  referred  to  them,  to  adjourn 
without  day,  or  to  a  day  beyond  the  session.^  This  course,  though 
irregular,  as  it  is  the  duty  of  a  committee  to  report,  may  and  com- 
monly does  receive  the  sanction,  or,  at  least,  the  acquiescence  of 
the  house ;  others\dse  the  committee  may  be  directed  by  the  house 
to  reassemble  and  proceed  with  the  business. 

1897.  Members  of  committees  being  as  much  bound  as  other 
members  to  attend  the  service  of  the  house,  it  is  a  rule,  that  com- 
mittees are  not  to  sit  whilst  the  house  is  sitting,  without  the  express 
leave  and  direction  of  the  house ;  *  and,  therefore,  when  it  is  found 

1  Elsing,  Harl.  Misc.  V.  213.  chairmnn  be  absent,  or  decline  to  appoint  such 

'  In   the  house    of  representatives  of  the  meeting. 

United  States,  it  is  provided  bv  rule,  that  it  'Pari.  Reg.   XII.  395;  Hans    (3>,  XXXIL 

shall  be  the  duty  of  a  committee  to  meet  on  601,  506;  Same,  (2),  X.  13. 

the  call  of  any  two  of  its  members,  if  ^he  *  Hans.  (3),  XIX.  3S1. 

62* 


738  LEGISLATIVE    ASSEMBLIES.  [PaRT    VII. 

necessary  that  a  committee  should  meet  or  sit  whilst  the  house  i3 
Bitting,  there  is  always  an  express  order  to  that  etTectJ  Sometimes 
the  authority  is  limited  to  a  particular  period,  or  to  certain  hours  on 
each  day.2  Sometimes  a  committee  is  directed  to  withdraw  imme- 
diately in  order  to  discharge  the  duties  of  its  appointment,  and 
sometimes  a  general  authority  is  given  either  in  the  order  for  the 
committee's  appointment,  or  by  some  subsequent  order,  to  sit 
whilst  ihe  house  is  sitting. 

1898.  With  a  view  to  the  enforcement  of  this  rule,  it  is  provided 
by  a  sessional  order,  in  the  house  of  commons,  "  that  the  sergeant- 
at-arms,  attending  this  house,  do,  from  time  to  time,  when  the 
house  is  going  to  prayers,  give  notice  thereof  to  all  committees; 
and  that  all  proceedings  of  committees,  in  a  morning,  after  such 
notice,  be  declared  to  be  null  and  void,"  ^  In  pursuance  of  this 
order,  committees  are  nominally  adjourned  when  the  speaker  takes 
the  chair;  but  the  custom  appears  to  be,  notwithstanding,  to 
complete  the  examination  ®f  a  witness,  if  one  should  be  under  ex- 
amination at  the  time,  although  it  may  last  half  an  hour  or  an 
hour ;  the  only  check  upon  this  practice  being,  that  no  division  can 
take  place  in  the  committee  after  the  chair  of  the  house  is  taken  by 
the  speaker ;  so  that  if  an  occasion  should  arise  for  the  committee 
to  divide,  the  committee  at  once  adjourns.*^  Leave  is  sometimes 
obtained,  in  urgent  cases,  on  the  meeting  of  the  house,  for  a  com- 
mittee to  sit,  until  a  certain  specified  time.^ 

1899.  It  is  another  rule  relating  to  the  sitting  of  committees,  the 
reason  of  which  Ls  not,  perhaps,  equally  apparent,"^  that  they  cannot 
regularly  sit  during  an  adjournment  of  the  house,  for  a  longer 
period  than  tiU  the  next  sitting  day.'  If,  therefore,  an  adjournment 
takes  place  suddenly,  and  without  any  order  being  made  in  refer- 
ence to  the  sitting  of  committees,  in  the  mean  time,  all  committees 
which  stand  adjourned  to  any  time,  or  have  been  ordered  to  meet 
during  the  interval,  will  be  without  day,  and  cannot  sit  without  a 
new  order  for  that  purpose.     Hence,  when  an  adjournment  takes 


1  Hans.  (3)  XIX.  381.  next  sitting  day,  which  is  deemed  to  be  a  con- 

2  Jour,  of  House,  HI.  157,  511;  S;ime,  V.  tinuance,  the  functions  of  members  continue 
120;  Same,  VH.  289;  Same,  VHI.  177,  553,  during  the  interval;  but  tliat  when  it  ad- 
585;  Same,  IX.  485;  Cong.  Globe,  VJIi.  158;  journs  for  a  longer  period,  which  is  a  recess, 
Same  XI.  547.  the  functions  of  the  members  cease  in  the 

3  May  304.  mean  time.  For  the  same  reasons,  coramit- 
*  Hans.  (3),  XXXVII.  189.  tees  have  not  been  considered  as  authorized 
6  jiav  304.  to  sit  in  the  recess. 

«  The'reason  of  the  rule  probably  is,  that,  '  May,  303;   Pari.  Reg    LXIII.  613    Hans, 

wnen  the  house  adjourns  from  one  day  to  the  (1),  XXXV.  1309. 


Chap.  III.]      power  and  authority  of  committees.  739 

place,  as  is  usual,  from  Friday  until  Monday,  leave  is  given  to  com- 
mittees to  sit  on  Saturday.^ 


Article  IL     As  to  the  Place  of  Meeting'. 

1900.  The  place  for  the  assembling  and  sitting  of  a  committee, 
is  always  fixed  by  the  house ;  and  the  members  cannot  meet  else- 
where as  a  committee.  But  it  sometimes  happens  that  a  commit- 
tee, in  the  prosecution  of  its  business,  finds  it  necessary  to  meet  at 
some  other  place ;  as,  where  there  is  occasion  to  examine  records, 
or  other  things  not  conveniently  susceptible  of  removal ;  and,  in 
such  cases,  unless  the  committee  has  been  previously  authorized  to 
adjourn  from  place  to  place,  it  must  obtain  the  special  leave  of  the 
house  for  that  purpose.^  In  our  legislative  assemblies  it  is  not 
usual  to  fix  upon  the  place,  any  more  than  the  time,  for  the  first 
meeting  of  a  committee.  The  committee  meets  at  the  place  speci- 
fied in  the  call ;  and  it  is  presumed  that  it  may  adjourn  from  place 
to  place,  without  the  special  leave  of  the  house  in  the  prosecution 
of  the  duties  of  its  appointment. 


Article  III.     As  to  sending  for  Persons,  Papers,  and  Records. 

1901.  When  the  object,  or  one  of  the  objects,  of  a  select  com- 
mittee, is  the  investigation  of  facts,  it  may,  without  any  express 
authority  for  the  purpose,  examine  all  witnesses  that  may  appear, 
and  aU  papers  that  may  be  brought  before  it,  and  all  records  to 
which  it  ©an  obtain  access  in  the  prosecution  of  its  inquiries ;  but 
without  express  authority  a  committee  cannot  compel  the  attend- 
ance of  witnesses,  or  the  production  of  papers ;  and  hence,  when- 
ever it  is  deemed  necessary  in  the  first  instance,  or  becomes  so 
afterwards,  leave  is  given  to  a  committee  "  to  send  for  persons, 
papers,  and  records." 

1902.  By  vii'tue  of  this  authority,  any  witness  may  be  sum- 
moned, by  an  order  signed  by  the  chairman,  to  appear  before  the 
committee,  and  to  bring  with  him  all  such  documents  as  he  may 
be  directed  to  bring  for  the  use  of  the  committee.  Any  neglect  or 
disobedience  of  the  summons  wnll  be  reported  to  the  house,  and  the 
offender  will  be  dealt  with  in  the  same  manner  as  for  a  similar  con- 
tempt to  the  house  itself.-^     The  proceedings  relating  to  the  sum- 

iMiiy,  237;  Purl.   Reg.   LXIIL  613;  Hans.  «  Romilly,  304,  note  1. 

fl),  XXX  VL  1309.  May,  299. 


740  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII. 

moning,  and  compelling  the  attendance  of  witnesses,  are  treated  of 
in  another  place. 

1903.  Obedience  is  as  much  due  to  the  summons  of  the  com- 
mittee as  to  the  order  of  the  house ;  and  the  proceedings  of  par- 
ties in  obeying  it  will  be  equally  justifiable,  and  they  will  them- 
selves be  equally  entitled  to  protection,  as  if  they  were  acting  in 
obedience  to  a  warrant  from  the  speaker.  Thus,  where  a  select 
committee,  appointed  to  investigate  certain  complaints  respecting 
the  prison  of  Lincoln  Castle,  with  power  to  send  for  persons,  pa- 
pers, and  records,  having,  found  it  necessary  to  examine  witnesses 
who  were  on  the  spot  during  the  transactions  in  question,  and 
entertaining  doubts  whether  the  warrant  which  they-  might  issue  to 
the  sheriff,  directing  him  to  bring  up  the  bodies  of  those  under  his 
charge,  would  be  sufficient  to  protect  him  against  actions  of  escape, 
thought  it  proper  to  suspend  all  further  proceedings,  until  they 
could  obtain  advice  and  assistance  from  the  house,  and  made  a 
special  report  accordingly:  —  the  house  entertaining  no  doubt,  re- 
committed the  report.! 


Akticle  IV.     As  to  Reporting-  from  Time  to  Time. 

1904.  In  the  ordinary  course  of  proceedings,  it  is  the  duty  of  a 
committee  to  make  its  report,  when  it  has  gone  through  with  and 
completed  its  business.  It  is  sometimes  convenient,  however,  that 
a  committee  should  be  authorized  to  report  from  time  to  time, 
especially  where  a  committee  is  engaged  in  an  examination  of  wit- 
nesses, whose  evidence  is  to  be  laid  before  the  house.*  In  such 
cases,  the  committee  is  to  exercise  its  discretion,  as  to  reporting 
from  day  to  day,  or  from  time  to  time,  and  as  to  the  best  division 
of  the  evidence  for  the  purpose  of  reporting  it  to  the  house.^  This 
authority  gives  power  to  a  committee  to  report  not  only  upon  the 
subject  originally  referred  to  it,  or  upon  the  general  subject  of  its 
appointment,  but  also  upon  matters  occasionally  referred  to  it.^ 

I  Hans.  (1),  XXni.  883.  Cong.  1st  Scss.  1288;    Same,  31st  Cong.  2d 

s  Hans.  (3),  XXXHL  190.  Sess.  267,  394;  Same,  32d  Cong.  1st  Sess.  195, 

«  J,  of  H.  21st  Cong.  2d  Sess.  413;  Same,      196. 

27th  Cong.  1st  Sess.  204,  206;  Same,  30th 


Chap.  III.]       power  and  autuohity  of  committees.  741 


Section  IL    Op  the  Powers  op  Committees  as  to  the  Subjects 

referred  to  them. 

1905.  The  functions  of  select  committees,  in  reference  to  the 
subjects  referred  to  them,  are  exceedingly  various.  The  most  com- 
mon authority  conferred  on  them  is  expressed  in  the  usual  form  of 
the  order  for  the  reference  of  a  petition  to  a  select  committee, 
namely :  "  that  the  said  petition  be  referred  to  the  consideration  of 
a  committee,  and  that  they  do  examine  the  matter  thereof,  and 
report  the  same,  with  their  opinion  thereon,"  (or  "  as  it  shall  appear 
to  them,)  to  the  house."  The  appropriate  functions  of  the  standing 
committees,  if  not  indicated  by  their  names  merely,  are  usually  set 
out  at  length  in  the  rules  and  orders  for  their  appointment. 

1906.  The  rules,  relating  to  the  power  of  committees,  in  respect 
to  the  subject-matter  referred  to  them,  are  two: — I.  A  committee 
is  not  at  liberty  to  entertain  any  proposition,  or  go  into  any  inquiry, 
which  does  not  come  witliin  the  direct  purposes  for  which  the  com- 
mittee is  appointed,  as  expressed  or  clearly  implied  in  the  authority 
conferred  upon  it,  or  which  is  not  grounded  upon  some  paper  which 
is  referred  to  the  consideration  of  the  committee.^  II.  When  a 
subject  is  referred  to  a  committee,  to  consider  the  matter  thereof, 
and  to  report  its  opinion  thereupon  to  the  house,  the  committee  is 
authorized  to  recommend  any  measure  connected  with  and  grow- 
ing out  of  the  subject  so  referred.-^ 

1907.  These  rides  are  founded  in  the  clear  and  indisputable  prin- 
ciple of  parliamentary  law,  that  a  committee  is  bound  by,  and  is 
not  at  liberty  to  depart  from,  the  order  of  reference ;  a  principle, 
which  is  essential  to  the  regular  despatch  of  but^iness  ;  for,  if  it  were 
admitted,  that  what  the  house  entertained,  in  one  instance,  and 
referred  to  a  committee,  was  so  far  controllable  by  that  committee, 
that  it  was  at  liberty  to  disobey  the  order  of  reference,  aU  business 
would  be  at  an  end ;  and,  as  often  as  circumstances  should  aflbrd 
a  pretence,  the  proceedings  of  the  house  would  be  involved  in  end- 
less confusion  and  contests  with  itself.'^ 

»  Pa^-l.  Reg.  XXn.  258.     See  also  J.  of  H.         a  Pari.  Reg.  LX.  391,  395,  396. 
82d  Cong.  1st  Sess.  786.  s  Parj.  Reg.  XH.  382. 


742  LEGISLATIVE   ASSEMBLIES.  [PaIIT    VIL 


CHAPTER     FOURTH. 

FORMS    OF   PROCEEDINGS  IN   SELECT  COMMITTEES. 

1908.  Committees  are  regarded  as  portions  of  the  house,  limited 
in  their  inquiries  by  the  extent  of  the  authority  given  them ;  but 
governed  in  their  proceedings  by  the  same  rules,  which  prevail  in 
the  house,!  ^^^(j  which  continue  in  full  operation  in  every  select 
committee.2  It  is  upon  this  principle,  that  the  practice  appears  to 
be  founded,  of  consulting  the  speaker,  in  reference  to  points  of  order 
and  the  forms  of  proceeding,  by  select  committees. 

1909.  I.  A  select  committee  is  presided  over  by  a  chairman 
appointed  by  itself,  who  has  and  exercises,  within  the  Limited 
authority  conferred  on  the  committee,  the  same  powers  and  duties 
as  the  speaker  of  the  house.  It  is  attended  by  a  clerk,  and,  if 
necessary,  by  a  shorthand  writer  appointed  by  the  clerk  of  the 
house,  to  which  the  committee  belongs,  and  it  keeps  minutes  of  its 
proceedings. 

1910.  It  is  competent,  of  course,  for  a  legislative  assembly  to  fix 
upon  the  member  of  a  committee  who  shall  act  as  chairman ;  and 
this  is  in  fact  done  in  all  our  legislative  bodies,  by  a  long  continued 
usage,  sanctioned  to  a  greater  or  less  extent  by  a  special  rule  or 
order  in  each  assembly ;  and  subject  to  the  right  of  the  committee 
when  assembled  and  organized,  to  choose  a  chairman  for  itself. 
Committees  with  us  are  appointed  in  three  principal  ways.  When 
chosen  by  ballot,  members  are  arranged  according  to  the  number 
of  votes ;  when  appointed  by  the  speaker  the  order  in  which  they 
are  named  is  the  order  of  arrangement,  and  when  chosen  by  oral 
suffrage,  they  are  arranged  in  the  order  of  the  votes  given  for  each. 
When  the  number  of  votes  given  for  two  or  more  is  equal,  those 
members  are  usually  arranged  in  the  order  in  which  they  happen  to 
be  voted  for.  The  first-named  member  of  a  committee  acts  as  its 
chairman ;  the  second-named,  in  the  absence  of  the  first  takes  the 
chair  of  the  committee,  and  so  on  to  the  last.  If  any  member  of 
the  committee  is  excused  by  the  house  from  further  service  thereon, 
or  in  any  way  ceases  to  be  a  member,  his  place  is  supplied  in  the 

1  Hans.l  3),  XXXII.  501,  502,  503,  504,  «  Hans.  (2),  XL  912,  914. 


Chap.  IV.]        forms  of  proceeding  in  committee.  743 

same  manner  in  which  he  was  oricfinally  appointed  ;  and  such  new 
member  becomes  the  chairman,  if  he  takes  the  chairman's  place, 
unless  otherwise  ordered  by  the  house. 

1911.  II.  A  committee  cannot  proceed  to  business,  unless  the 
requisite  number  to  constitute  the  committee  is  pre:-ent.  This 
number  is  fixed  by  the  house,  in  reference  to  each  particular  case ; 
if  not  so  fixed,  it  would  be  necessary  for  all  the  members  of  the 
committee  to  attend.^  Three  are  p:enerally  a  quorum  in  commit- 
tees of  the  upper  house ;  in  the  commons,  the  usual  number  is  five  ; 
sometimes,  however,  three,  and  occasionally  seven,  or  any  other 
number  which  the  house  may  direct.  On  two  occasions,  in  the 
house  of  commons,  where  the  investi fixations  partook  of  a  judicial 
character,  the  house  named  a  quorum  of  five,  but,  at  the  same  time, 
directed  the  committee  to  report  the  absence  of  any  member,  on 
two  consecutive  davs.^  When  the  quorum  of  a  committee  is  not 
fixed  by  the  house,  it  is  understood  with  us  that  a  majority  of  a 
committee  constitutes  a  quorum  for  proceeding.^ 

1912.  If  after  proceeding  to  business,  the  number  of  members 
present  should  be  reduced  below  the  quorum,  or  if  any  member 
should  leave  the  room,  where  there  was  no  number  fixed  for  the 
quorum,  the  business  of  the  committee  would  not  necessarily  be 
interrupted,  unless  notice  should  be  taken  by  a  member  that  the 
requisite  number  was  not  present.  But  no  question  could  be  de- 
cided by  a  vote,  without  a  quorum  ;  as,  in  that  case,  the  irregularity 
ap'pearing  on  the  minutes  would  be  obvious.  In  these  particulars 
the  practice  is  the  same  as  in  the  house. 

1913.  III.  In  the  prosecution  of  the  business  referred  to  them, 
committees  proceed  by  motions,  resolutions,  and  votes  ;  and,  in  all 
their  proceedings,  with  certain  exceptions,  which  will  be  presently 
mentioned,  the  rules  by  which  they  are  governed  are  absolutely  the 
same  with  those  by  which  the  house  is  governed  in  analogous  pro- 
ceedincfs. 

1914.  The  exceptions  to  the  rule  are,  that,  in  committees,  a 
member  mav  speak  more  than  once  to  the  same  question ;  *  that  a 
committee  has  no  authority  to  punish  one  of  its  members  or  other 
person,  for  any  offence  committed  against  it,  as  by  disorderly  words 
or  contemptuous  conduct,  —  as,  for  example,  when  a  T\ntness  re- 
fuses to  testify,  or  prevaricates,  —  but  can  only  report  such  offence 
to  the  house  for  its  animadversion ;  and  that,  in  practice,  it  is  not 

^  Scobcl,  47,  48.  '  .TefTersoirp  Manual,  Sec.  XXVI. 

»  May,  2Ji8.  ♦  Scobel,  35,  36. 


744  LEGISLATIVE   ASSEMBLIES.  PaRT  VII. 

considered  necessary  that  a  motion  should  be  seconded,  though 
there  is  no  rale  to  this  effect,  and  it  is  difficult  to  see  any  sufficient 
reason  ^vhy  a  seconding  should  not  be  requu-ed  as  well  in  com- 
mittees as  in  the  house. 

1915.  Another  exception,  which  is  peculiarly  American,  is,  that 
no  reconsideration  of  a  vote  can  take  place  in  a  committee,  either 
select  or  of  the  whole.  This  principle,  however  convenient  it 
may  be,  seems  to  be  founded  in  a  somewhat  too  hteral  and  strin- 
gent an  application  of  a  familiar  doctrine  of  the  common  parlia- 
mentary law.^ 

1916.  IV.  Questions  are  determined  in  select  committees  by  the 
voices  and  by  divisions,  in  the  same  manner  as  in  the  house  to 
which  they  belong.  In  the  lords'  committees,  the  chairman  votes 
like  any  other  peer ;  and  if  the  members  on  a  division  are  equal, 
the  question  is  negatived.  In  the  commons,  the  practice  is  similar 
to  what  takes  place  in  the  house  on  divisions  ;  the  chairman  vot- 
ing only  when  the  numbers  are  equal,  and  then  giving  the  casting 

vote.^ 

1917.  According  to  the  constitution  of  election  committees,  as 
originaUy  established  by  the  Grenville  act,  the  chairman  voted  with 
the  other  members  in  the  first  instance,  and  then,  in  case  of  an 
equality  of  numbers,  gave  a  casting  vote.  But  this  privilege  was 
peculiar  to  election  committees,  w^hich  were  regulated  as  to  their 
proceedings  entb-ely  by  statute,  and  did  not  extend  to  any  others. 
It  appears,  however,  that  a  notion  at  one  time  prevailed,  to  some 
extent,  that  the  chairman  of  every  select  committee  had  the  same 
right ;  but,  upon  the  subject  being  brought  before  the  house  by  the 
chairman  of  a  select  committee  who  had  so  voted,  Mr.  Speaker 
Abercrombie  gave  his  opinion,  which  was  acquiesced  in  by  the 
house,  that  the  chanman  of  a  select  committee  could  only  vote 
when  the  committee  was  equally  divided,  in  which  case,  it  was 
his  duty  to  give  a  casting  vote;^  The  house  very  soon  afterwards 
came  to  a  resolution'  "  that  according  to  the  established  rules  of 
parliament,  the  chairman  of  a  select  committee  can  only  vote  when 
there  is  an  equality  of  voices."  ^ 

1918.  V.  Committees  have  the  same  authority  as  the  house 
itself,  in  regard  to  the  exclusion  of  strangers  from  the  committee 
room.  AVhen  a  select  committee  of  the  house  of  lords  is  taking 
the  examination  of  witnesses,  strangers  are  rarely  allowed  to  be 

1  Jefferson's  Manual,  Sec.  XXVI.  ''  Hans.  (3),  XXXII.  501,  t02,  503,  504. 

i  May,  303;  Comm.  Jour.  XCI.  214.  *  Comm.  Jour.  XCI.  214. 


Chap.  IV.]        forms  of  proceeding  in  committee.  745 

present ;  in  the  commons'  committees,  the  presence  of  strangers  is 
generally  permitted.  When  committees  are  deliberating,  it  is  the 
invariable  practice  to  exclude  all  strangers. 

19J9.  Members  of  the  house  to  which  a  select  committee  be- 
longs stand  upon  a  ditlerent  footing.  In  the  house  of  lords,  all  the 
lords  are  entitled  to  attend  the  select  committees,  and  may  speak, 
but  they  are  not  allowed  to  vote,  and  are  bound  to  give  place  to 
those  of  the  committee,  though  of  ^a  lower  degree.^  Members  of 
the  house  of  commons  are  also  entitled  to  be  present  at  select  com- 
mittees. If  the  committee  is  an  open  one,  th(^y  have  a  right  not 
oply  to  be  present,  but  to  take  a  part  in  the  proceedings  ;  being,  in 
fact,  members  of  the  committee.  K  the  committee  is  select,  with- 
out being  open,  other  members  may  attend  and  be  present  at  the 
examination  of  witnesses,  and  at  other  proceedings  of  the  com- 
mittee, until  it  comes  to  deliberate  ;  ^  but  they  have  no  right  to  at- 
tend for  the  purpose  of  addressing  the  committee,  or  of  putting 
questions  to  the  witnesses,  or  of  interfering  in  any  manner  what- 
ever in  the  proceedings.^  Whether  members  can  be  excluded  from 
the  committee  room,  when  the  committee  is  proceeding  to  deliber- 
ate, is  a  question  which  appears  to  be  still  unsettled.^  If  the  com- 
mittee is  one  of  secrecy,  all  the  proceedings  and  inquiries  through 
out  are  conducted  with  closed  doors;  and  it  is  the  invariable 
practice  for  all  members  not  on  the  committee  to  be  excluded  from 
the  room."^ 

1920.  VI.  The  members  of  a  select  committee  having  themselves 
no  other  than  a  delegated  authority,  derived  from  the  house  of  which 
they  are  members,  which  authority  is  delegated  entire  to  each  and 
every  member  of  the  committee,  it  is  not  competent  to  the  commit- 
tee to  divide  itself  into  sub-committees,  among  whom  to  apportion 
or  delegate  its  own  functions,  any  more  than  it  is  competent  to  the 
committee  to  fix  the  number  of  its  members  necessary  to  constitute 
a -quorum.*^  It  does  not  seem,  however,  to  be  incompatible  with 
this  principle,  for  a  select  committee  to  avail  itself  of  the  services  of 
its  members,  individually,  or  in  the  form  of  sub-committees,  for  the 
doing  of  many  things  connected  with  the  business  of  the  committee, 
which  do  not  involve  a  delegation  of  authority. 

1  May,  300.  *  See  May,  300;  Hans.  (3),  LXXVIH    305, 

a  Scobel,  49;  Hatsell,  IV.  135,  note.  See  also  306. 

Comm.  Jour.  I.  849.  '  May,  302. 

3  Hans.  (3),  LXXUI.  725,  726.  «  Hans.  (1),  XXXIX.  776,  777. 

63 


746  LEGISLATIVE   ASSEMBLIES.  [PaRI    V]1. 


/ 


CHAPTER    FIFTH. 

OF  INSTRUCTIONS   TO   COMMITTEES. 

1921.  The  order,  by  which  the  appointment  of  a  select  commit- 
tee is  directed,  specifies  the  authority  conferred  upon  the  committee, 
as  to  the  subject-matter,  and  contains,  or  is  accompanied  by  other 
orders  which  contain,  the  powers  with  which  the  committee  is 
clothed  for  the  performance  of  its  duties.  It  is  also  competent  to 
the  house,  afterwards,  to  enlarge  the  authority  of  the  committee, 
either  as  to  the  subject-matter,  or  its  incidental  powers,  by  means 
of  what  are  called  instructions. 

1922.  Instructions  may  be  given  to  a  committee,  at  any  time 
after  the  adoption  of  the  order  for  its  appointment,  although  the 
members  have  not  yet  been  named ;  but  it  is  too  early  to  move 
instructions  on  the  motion  for  the  appointment  of  the  committee ;  ^ 
any  alteration  or  enlargement  of  the  powers  proposed  may  then  be 
effected  by  amendments  of  the  motion  for  the  committee. 

1923.  The  proper  object  of  an  instruction  to  a  committee,  as  to 
the  subject-matter  referred  to  it,  is  to  enlarge  its  powers ;  that  is, 
to  bring  within  the  scope  of  the  authority  already  conferred  upon 
it,  matters  not  originally  coming  under  the  order  of  reference.  An 
instruction,  therefore,  which  merely  affirms  the  existing  powers  of 
a  committee,  is  unusual,  and  irregular,  as  being  wholly  unnecessary. 
Thus,  where  a  committee  had  been  appointed  to  inquire  into  the 
state  of  the  poorer  classes  in  Ireland,  and  the  best  means  of  improv- 
ing their  condition;  and  a  motion  was  made,  that  it  be  an 
instruction  to  the  committee  to  inquire  how  far  the  statute  of  the 
43  Elizabeth  might  be  made  applicable  to  the  poor  of  Ireland;  the 
speaker,  Mr.  Manners  Sutton,  said,  "  that  the  committee  already 
had  power  to  extend  their  inquiries  to  that  point;  and  it  was 
unusual  to  give  an  instruction  to  it  to  do  that  which  it  already  had 
the  power  to  do."  - 

1924.  An  instruction,  which  proposes  to  direct  a  committee  abso- 
lutely to  do  or  not  to  do  a  particular  thing,  which  is  already  within  its 
powers  to  do  or  not  to  do,  as  it  may  think  proper,  is  ijregalar;  on 

1  Hans.  (3),  XXXL  147,  153, 155, 163.  ^  Huns.  (2),  XXHL  202,  222. 


Chap.  V.]  instructions  to  committees.  747 

the  ground,  it  is  presumed,  that  such  an  instruction  would  be  repug- 
nant to  the  reference,  as  the  effect  of  it  would  be,  in  fact,  to  with- 
draw from  the  consideration  of  the  committee  so  much  of  the 
power  originally  conferred  upon  it,  and  to  decide  upon  that  matter 
in  the  house.  Thus,  where  it  was  proposed  to  instruct  the  com- 
mittee on  a  bill,  that  it  should  not  entertain  a  certain  proposition, 
which  was  evidently  within  the  scope  of  the  bill,  the  speaker,  Mr. 
Shaw  Lefevre,  said,  "  The  rule  of  the  house  waa  simply  this,  that 
no  person  could  move  an  instruction  to  a  committee  to  do  that 
which  could  be  done  without  an  instruction.  If  the  proposition 
was  within  the  scope  and  title  of  the  bill,  it  was  quite  competent 
for  the  mover  to  introduce  it  in  the  committee,  either  by  moving  an 
amendment  to  some  clause,  now  in  the  bill,  or  by  a  new  clause,  and 
then  it  would  not  be  competent  for  him  to  move  an  instruction  for 
that  purpose."  ^ 

1925.  The  reason  of  the  rrde  above  stated  does  not  beem  to 
apply  to  an  instruction,  by  wliich  a  committee  is  directed  absolutely 
to  do  something  which  is  not  within  the  scope  of  its  authority ; 
and,  in  fact,  instructions  of  this  description  are  among  the  most 
common.  An  instruction  to  a  committee  not  to  do  a  particular 
thing,  not  within  the  scope  of  its  appointment,  would  only  be  a 
direction  to  it  not  to  transcend  its  authority. 

1926.  There  are  consequently  but  two  forms  of  instruction  to  a 
committee  in  reference  to  the  subject-matter,  namely,  that  it  be  an 
instruction  to  the  committee  that  it  has  power  to  do  a  particular 
thing,  or  that  it  do  a  particular  thing,  which  is  not  within  the 
authority  already  conferred  upon  it. 

1927.  Whenever  it  becomes  necessary  to  enlarge  or  add  to  the 
incidental  powers  of  a  select  committee,  it  is  done  by  way  of  an 
instruction ;  as,  for  example,  that  it  be  an  instruction  to  the  com- 
mittee that  they  have  power  to  report  from  time  to  tune,  or  to 
adjourn  from  place  to  place,  or  to  send  for  persons,  papers,  and 
records. 

»  Hans.  (3),  LXXIV.  107. 


^48  LEGISLATIVE   ASSESLBLIES.  [PaET   YIl 


CHAPTER    SIXTH. 

OF    OTHER    INTERMEDIATE    PROCEEDINGS    IN    THE    HOUSE    WITH 

REFERENCE   TO  COMMITTEES. 

1928.  Committees  may,  at  any  time  after  their  appointment  to 
consider  a  particular  matter,  and  before  their  report  upon  it,  be  dis- 
charged by  the  assembly  from  the  further  consideration  of  the 
same.  They  may  also,  as  has  been  seen  in  the  last  chapter,  be  in- 
structed in  reference  to  it.  But  besides  instructions  to  committees, 
there  are  frequent  occasions  on  which  proceedings  take  place  in  the 
house  mth  reference  to  committees,  after  the  order  of  reference, 
and  before  the  final  report. 

1929.  Occasions  of  this  sort  occur  when  special  reports  are  made 
from  committees,  with  reference  to  disorders  committed  therein,  or 
to  the  use  of  disorderly  words ;  or  to  some  contempt  of  the  com- 
mittee's authority,  as  where  a  person  summoned  as  a  witness  re- 
fuses to  appear,  or  to  testify,  or  prevaricates  in  his  testimony ;  or 
when  intermediate  measures  become  necessary  in  the  prosecution 
of  the  business  referred  to  the  committee,  as  when  the  committee 
desires  the  instruction  of  the  house  in  reference  to  the  form  of  pro- 
ceeding ;  or  when  a  committee  is  remiss  in  proceeding  or  making 
its  report ;  or  when  a  committee  has  adjourned  without  day,  or  to  a 
day  beyond  the  session,  without  reporting;  or  when  it  becomes 
necessary  to  fill  vacancies  in  the  committee,  or  to  enlarge  it  by  the 
appointment  of  additional  members;  in  all  these  cases,  there  is 
ground  for  further  proceedings  in  the  house.i 

1  An  order  of  the  committee  of  privileges  cases  of  Natlmniel  Rounsavell,  J.  of  H.  VIH. 

and  elections  not  being  complied  witb,  and  278,279,280;  Reuben  M.  Whitney,  Same,  24th 

complaint  thereupon  made  in  the  house,  the  Cong.  2d  Sess.   367;    Ritchie    &    Sengstcck, 

order  was  there  renewed.     Com m.  Jour.  XV.  Same,  31st  Cong.  1st  Sess.  1318,1336,1343, 

71.     See  also  Same,  XVL  277,  291,324,325;  1344,  1345. 
Same,  XVII.  519,  527,  539,  542.     See  also  the 


Chap.  VTL]       reports  of  committees.  749 


CHAPTER  SEVENTIL 

OF  THE  REPORT. 

1930.  The  great  purpose  for  which  committees  are  appointed 
beiriir,  the  takina:  of  such  measures  with  reference  to  the  subject- 
matter  referred  to  their  consideration,  that  when  their  acts  and  pro- 
ceedings are  agreed  to,  they  become  the  acts  and  proceedings  of 
the  house,  it  is  consequently  the  duty  of  committees  both  to  pro- 
ceed under  the  authority  given  them,  and  to  report  thek  doings  to 
the  house.i 

1931.  A  committee  having  assembled  at  the  time  and  place  ap- 
pointed for  it  to  meet,  and  having  organized  itself  by  the  choice  of 
a  chairman  and  clerk,  or  by  the  choice  of  the  latter  only,  where  it 
acquiesces  in  the  chairman  appointed  by  the  house,  it  is  then  ready 
to  proceed  with  the  business  referred  to  it,  or  with  such  other  busi- 
ness as  it  may  have  to  do,  and  for  this  purpose  it  possesses  sub- 
stantially the  powers  vested  in  the  house  of  which  it  is  a  part,  as  a 
deliberative  body,  and  proceeds  in  substantially  the  same  manner. 
But  it  also  adopts  many  forms  of  proceeding,  according  to  circum- 
stances, which  are  peculiar  to  itself,  and  which  bear  only  a  general 
analogy  to  ordinary  parliamentary  proceedings. 

1932.  Where  a  committee,  whether  select  or  of  the  whole,  is 
proceeding  upon  a  paper  before  it,  either  submitted  to  it  by  one  of 
its  own  members,  or  referred  to  it  by  the  house,  the  orderly  course 
requires  that  the  paper  should  first  be  read  at  length  by  the  clerk, 
for  the  information  of  the  committee,  and  then  by  the  chairman,  by 
paragraphs,  pausing  at  the  end  of  each,  to  give  opportunity  for 
amendments  therein  to  be  moved,  and  to  put  questions  for  amend- 
ment, if  proposed.  K  the  paper  or  papers  before  the  committee 
originate  with  itself,  and  consist  of  resolutions  on  distinct  and  in- 
dependent subjects,  a  question  is  put  on  each  separately,  for  agree- 
ing to  it  as  amended  or  unamended,  and  no  final  question  on  the 
whole.  But  if  the  resolutions  relate  to  the  same  question,  and  are 
parts  as  it  were  of  the  same  whole,  then  a  question  is  to  be  put  on 
the  whole.  Thus,  if  it  is  a  bill,  draft  of  an  address,  series  of  reso- 
lutions, or  other  paper  originating  with  the  cornmittee,  no  question 
is  put,  as  the  committee  passes  through  the  paragraphs,  on  agreeing 

1  Pari.  Reg.  XII.  395;  Hans.  (3),  XXV.  963. 

63* 


750  LEGISLATIVE   ASSEMBLIES.  [PaRT   Vll 

to  each  separately,  they  being  parts  of  one  whole,  but  this  is  re- 
served for  the  close,  when  a  question  is  put  on  the  whole  for  agree- 
ing to  it  as  amended  or  unamended.  If  the  paper  before  the  com- 
mittee is  one  which  has  been  referred  to  it,  the  committee  proceeds 
through  it  by  paragraphs  as  above  stated,  putting  questions  of 
amendment  if  proposed,  but  no  final  question  on  the  whole; 
because  all  parts  of  Ihe  paper,  having  been  adopted  by  the  house, 
stand,  of  course,  unless  altered  or  struck  out  by  a  vote  of  the  house 
itself.  Even  if  the  committee  is  opposed  to  the  whole  paper,  and 
cannot  make  it  acceptable  by  amendment,  they  cannot  reject  it, 
but  must  report  it  back  to  the  house  without  amendment,  and 
there  make  their  opposition.^ 

1933.  The  natural  order,  in  considering  and  amending  any 
paper,  is  to  begin  at  the  beginning,  and  proceed  through  it  by  para- 
graphs ;  and  this  course  is  so  generally  adhered  to,  that  when  a 
latter  part  of  a  paragraph  has  been  amended,  it  is  not  in  order  to 
recur  back,  and  make  any  alteration  in  a  former  part.  This  rule  is 
doubtless  conducive  to  the  regular  proceeding  of  numerous  assem- 
blies ;  but  in  those  which  are  smaller,  and  especially  in  select  com- 
mittees, its  observance  may  conveniently  be  dispensed  with  or 
disregarded.2  This  order  of  proceeding  admits  of  a  single  excep- 
tion, when  by  a  vote  of  the  assembly,  the  preamble,  if  the  paper 
before  the  committee  has  any,  is  postponed  for  consideration  until 
the  other  parts  of  the  paper  have  been  gone  through  with  in  the 
manner  above  mentioned.'^ 

1934.  If  a  committee,  therefore,  without  proceeding  with  or 
completing  the  business  referred  to  its  consideration,  adjourns  with- 
out day,  or  to  a  day  beyond  the  session,  —  which  is  a  course  occa- 
sionally taken  by  committees  with  a  view  to  dispose  of  the  business 
before  them,  and  which,  though  irregular,  is  sometimes  allowed 
as  a  convenient  course,'*  —  the  committee  may  be  directed  by  the 
house  to  reassemble,  and  proceed  with  the  business  referred  to  its 
consideration.^  A  committee  if  remiss  in  reporting  may  be  ordered 
by  the  house  to  report,*'  or  to  report  instanter.'' 

1935.  When  a  committee  has  gone  through  wath  the  business 
referred  to  it,  and  has  agreed  upon  a  report  to  be  made  to  the 
house,  the  duty  of   preparing   the  report  is  devolved  upon  some 

1  Jefferson's  Manual,  Sec.  XXVI,  «  J.  of  H.  25th  Cong.  2(1  Sess.  976. 

«  Jeffer^'on's  Manual,  Sec.  XXVI.  '  J.  of  H.  27tli  Con-.  2d  Sess.  199.    In  this 

«  Scobel,  50;  Grey,  VII.  431.  latter  case,  time  must  be  allowed  the  com- 

*  Pari.  ReR.  XII.  395;  Hans.  (2)  X.  13.  mlttee  to  assemble  in  their  room,  and  to  agrea 

*  Soe  Hans.  (2),  X.  8,  9,  10.  upon  and  wepare  their  report. 


Cn^P.    VIL]  REPORTS    OF   COMMITTEES.  751 

one  of  the  members,  usually  Ihe  chairman,  by  whom  it  '9  prepared 
accordingly,  and  submitted  to  the  committee  for  their  considera- 
tion. When  the  report  is  agreed  to  by  the  committee,  the  chair- 
man or  some  other  member  is  directed  to  present  it  to  the  house; 
and  the  committee  having  thus  performed  its  functions,  adjourns 
without  day  and  is  dissolved.  But  the  committee  can  only  act 
when  together,  and  not  by  separate  consultation,  and  consent, 
nothing  being  the  report,  but  what  has  been  agreed  to  in  commit- 
tee actually  assembled.^ 

1936.  The  report  of  a  committee,  both  in  its  form,  and  as  to  its 
substance,  ought  to  correspond  with  the  authority  of  the  commit- 
tee.2  If  it  does  not,  it  will  either  be  recommitted,  disagreed  to,  or 
directed  to  be  withdrawn.  If  the  business  of  a  committee  involves 
an  inquiry  of  fact,  it  should  report  the  facts,  or  the  evidence ;  if 
the  opinion  of  the  committee  is  required,  it  should  be  expressed 
in  the  form  of  resolutions ;  ^  if  the  duty  of  the  committee  requires 
it  to  do  a  particular  thing,  it  should  report  the  doing  of  the  thing; 
if  the  preparing  of  an  address  or  other  paper  is  the  subject  of  the 
committee's  authority,  it  should  report  the  paper  in  the  form  re- 
quired. If  a  paper,  other  than  a  petition  or  memorial  or  paper  of 
that  description,  is  referred  to  a  committee,  either  select  or  of  ihe 
whole  house,  the  report  thereon  is,  that  the  committee  agrees  or 
disagrees  to  the  paper  in  question,  or  agrees  to  it  with  an  amend- 
ment; if  amendments  akeady  agreed  to  are  referred  with  the 
paper,  they  make  a  part  of  it ;  if  not  already  adopted,  they  are 
either  agreed  to  or  disagreed  to,  or  agreed  to  with  amendments ; 
but  if  the  paper  referred  to  a  committee,  is  one  to  the  contents  of 
which  the  house  has  given  its  sanction,  the  committee  cannot,  by 
its  report,  either  directly  or  indirectly,  recommend  the  destruc- 
tion of  what  the  house  has  so  adopted.  In  the  latter  case,  the  only 
proper  course  is  to  report  the  measure  in  question,  either  with  or 
•v\'ithout  amendment,  as  a  committee,  and  oppose  it  mdividually  in 
the  house.  K  a  committee,  being  equally  divided  in  opinion,  finds 
itself  unable  to  determine  the  matter  referred  to  it,  it  may  refer  the 
matter  back  to  the  determination  of  the  house ;  *  or  it  may  re- 
port a  statement  of  the  facts,  and  thereupon  aslc  to  be  discharged 
from  the  further  consideration  of  the  subject.'^     This,  however,  is  a 

iJefTerson'9  Manual,  Sec*  XXVI.;  Cong.         ■•  Hatsell,  IV.  192,  note. 

Globe,  XI.  939.  "  J.  of  C.  VI.  107 ;  J.  of  S.  II.  381 ;  J.  of  H. 

»  Pari.  J{q^.  LX.  391,  395,396.  19th  Cong.  1st  Ses?.  591;  Cong.  Globe,  XXL 

»  Comni.  Jour.  XII.  687.  1378. 


752  LEGISLATIVE   ASSEMBLIES.  [PaRT  VII. 

contingency  which  can  only  occur,  where  the  chairman  votes  with 
the  other  members,  and  not  where  he  merely  has  a  casting  vote. 

1937.  The  report  of  a  committee  is,  of  course,  supposed  to  be 
prepared  and  drawn  up  by  the  committee  or  some  of  its  members, 
and  not  by  any  other  person ;  but  whether  it  is  so  or  not  is  en- 
tirely immaterial,  provided  the  report  receives  the  sanction  of  the 
committee,  and  is  presented  by  its  order.  Thus,  where  a  member 
stated  that  he  had  a  communication  to  make  to  the  house,  relative 
to  the  drawing  up  of  the  report  of  a  certain  committee,  and  was 
proceeding  to  state  facts  and  circumstances  tending  to  show,  that 
the  report  was  not  drawn  up  by  any  member  of  the  committee,  but 
by  the  agent  of  the  petitioners ;  he  was  interrupted  to  order,  by 
another  member,  who  inquired  whether  he  had  any  motion  to  make, 
and  the  speaker  (Mr.  Manners  Sutton)  said,  "that  even  a  motion 
would  not  relieve  the  house  from  its  difficulty  ;  any  discussion  as 
to  who  drew  up  the  report  was  improper ;  the  committee  presented 
the  report  to  the  house,  and  they  were  responsible  for  it ;  he  never 
knew  that  it  was  of  any  consequence  to  inquire  who  did  or  did 
not  draw  up  a  report  of  the  kind,  inasmuch  as  the  house  always 
placed  its  confidence  in  the  committee  which  presented  the  re- 
port." 1 

1938.  Where  the  subject  referred  to  the  consideration  of  a  com- 
mittee involves  an  investigation  of  facts,  —  the  committee  being 
directed  to  examine  the  matter  thereof,  —  it  is  the  duty  of  the  com- 
mittee, in  the  first  place,  to  report  so  much  of  the  evidence,^  or  such 
a  summary  of  it,^  as  it  may  think  proper,  for  the  purpose  of  pre- 
senting the  matter  "  as  it  appears  to  them,"  together  with  such 
resolutions  of  opinion,  as  it  has  come  to,  and  as  it  judges  the 
house  ought  to  come  to,  upon  the  matter  as  presented  by  the  facts 
and  evidence  reported.* 

1939.  Resolutions  of  opinion,  merely,  upon  evidence  not  report- 
ed, are  not  resolutions  at  all  according  to  the  received  meaning  of 
parliamentary  language.  The  grounds  of  the  resolutions,  as  well 
as  the  resolutions  themselves,  should  be  reported ;  otherwise  it 
cannot  be  known  what  grounds  of  assent  or  dissent  the  committee 
had  for  its  proceedings ;  nor  can  the  house  have  any  other  ground 
for  agreeing  or  disagreeing  with  the  committee,  in  the  resolutions 
reported,  than  its  confidence  in  the  judgment  and  integrity  of  the 

1  Hans.  (3),  XXIL  712;  J.  of  H.  32d  Cong.         »  Hans.  (3),  XXXVIH.  191. 
I9t  Sess.  785.  *  Pari.  Reg.  XI.  488. 

«  Hans.  (3),  XIU.  8. 


CUAP.    VII.]  REPORTS   OF   COMillTTEES.  7o3 

committee;  resolutions  so  reported  are  mere  resolutions  of  opinion, 
unaccompanied  by  facts  or  evidence.^ 

1940.  The  conclusions  of  a  select  committee  are  sometimes  ex- 
pressed in  the  form  of  resolutions,  which  are  not  of  a  proper  char- 
acter to  be  agreed  to  and  to  Ijecomc  the  resolutions  of  the  house. 
Resolutions,  that,  in  the  opinion  of  the  committee,  the  petitioners 
have  fully  proved  all  the  facts  alleged  in  their  petition,  or  ihat  the 
committee  is  of  opinion,  that  the  house  be  moved  for  leave  to  bring 
in  a  biU,  etc.,  are  of  this  kind,  but  it  has  no  authority  to  report  any 
thing  which  requires  a  suspension  of  the  rules.-  In  such  cases,  no 
motion  is  made  for  agreeing  to  the  resolutions ;  such  agreement 
being  both  unnecessary  and  incongruous ;  but  such  other  motions 
are  made,  as  the  circumstances  of  the  case  require. 

1941.  In  reporting  evidence,  a  committee  is,  of  course,  to  exer- 
cise its  own  judgment  as  to  whether  the  whole  of  the  evidence 
shall  be  reported,  or  only  certain  portions  of  it,  or  whether  the  evi- 
dence shall  be  reported  in  full,  or  only  a  summary  of  it,  according 
as  the  committee  may  judge  necessary,  in  order  to  present  the 
grounds  of  its  resolutions  to  the  house.'^  If  the  evidence,  as  re- 
ported, should  not  be  deemed  sufficiently  full  or  complete,  the 
house  may,  on  motion,  order  the  minutes  of  the  evidence  to  be 
reported.* 

1942.  K  a  committee  presents  its  report  in  the  form  of  a  con- 
tinuous statement,  without  resolutions,  it  cannot  regularly  be  read 
as  a  series  of  resolutions,  and  proposed  to  the  house  to  be  agreed 
to  as  such  ;  but  it  is  competent  to  any  member  to  move  a  series  of 
resolutions,  drawn  up  in  conformity  with,  and  in  the  exact  terms  of 
the  report  of  the  committee.'^  A  continuous  report  is  the  proper 
form,  where  the  committee  reports  facts  or  evidence ;  its  opinion,  if 
proper  to  be  agreed  to  by  the  house,  is  expressed  in  the  form  of 
resolutions.     Both  these  forms  generally  exist  in  the  same  report 

1943.  It  is  competent  to  a  committee,  appointed  to  consider  any 
subject,  and  to  report  its  opinion  thereon,  to  report  that  leave  ought 
to  be  given  for  bringing  in  a  bill ;  but,  in  such  a  case,  the  committee 
should  state  its  opinion  in  parliamentary  language,  namely,  that  a 
bill  be  brought  in,  and  not  that  a  bill  should  pass.''  The  usual  form 
is,  to  resolve  that  the  house  be  moved,  or  to  direct  the  chairman  tc 
move  the  house,  that  leave  be  granted  to  bring  in  a  bill. 

>  Pari.  Reg.  XT.  488.  4  Hans.  (3),  XXXVIII.  191. 

«  Cong.  Globe,  XXI.  1825.  *  Hans.  (3),  XXXIII.  71. 

»  Hans.  f3),  XIII.  8;  Same,  XXXVIH.  191.  «  Pari.  Reg.  XL VII.  414. 


I 

754  LEGISLATIVE    ASSEMBLIES.  [PaeT   VII 

1944.  In  regard  to  clerical  form,  —  a  matter  by  no  means  unim- 
portant, —  a  report  should  be  clearly  and  legibly  ^VTitten  with  ink, 
and  not  in  pencil,  and  without  any  material  erasures  or  interlinea- 
tions. If  presented  in  a  foul  state,  the  house  will  order  it  to  be 
recommitted,  or  withdrawn,  in  order  to  its  being  written  out  in  a 
proper  manner.^  It  is  not  probable  that  any  report  of  a  merely 
formal  nature  would  be  required  to  be  made  in  writing,  but  every 
one,  at  least,  which  requkes  the  action  of  the  house,  or  is  to  remain 
on  its  files,  should  be  prepared  in  that  manner.^ 

1945.  Besides  the  report,  properly  so  called,  relating  to  the  sub- 
ject-matter referred  to  a  committee,  it  is  frequently  necessary  for  a 
committee  to  make  a  special  report,  in  reference  to  some  matter 
incidentally  arising,  relating  to  the  powers,  functions,  or  proceed- 
ings, of  the  committee.  Such  reports  are  similar  in  point  of  form, 
and  are  proceeded  upon  in  the  same  manner  as  the  principal  report 
of  the  committee.  A  report  from  an  election  committee,  that  one 
of  the  sitting  members  in  the  case  before  the  committee  had  been 
guilty  of  bribery  and  corruption ;  ^  a  report  from  a  select  commit- 
tee, that  parts  of  the  evidence  taken  by  it  had  been  published 
improperly ;  ^  a  report  from  a  select  committee,  requesting  the  in- 
structions of  the  house,  as  to  the  authority  of  the  committee,  or  the 
proper  course  for  it  to  proceed ;  ^  are  examples  of  incidental  or 
special  reports. 

1946.  When  a  committee  is  authorized  to  report  from  time  to 
time,  and  the  subject-matter  referred  to  its  consideration  is  one 
which  admits  or  requires  more  than  a  single  report,  the  committee 
is  at  liberty  to  make  as  many  reports  as  it  may  think  proper,  and 
at  convenient  intervals  as  it  makes  progress  in  the  business  referred 
to  its  consideration. 

1947.  Besides  reports,  properly  so  called,  committees  frequently 
direct  their  chairman  to  make  motions  in  the  house,  either  in  ref- 
erence to  the  subject-matter  referred  to  the  committee,  or  to  some 
incidental  matter  connected  with  or  growing  out  of  the  principal 
subject.  The  direction  frequently  given  to  the  chakman  of  a  com- 
mittee, to  move  the  house  that  leave  be  granted  for  bringing  in  a 
bill,  is  an  example  of  the  former.  A  direction  to  move  for  leave  to 
send  for  persons,  papers,  and  records,  or,  that  the  committee  may 
report  from  time  to  time,  is  an  example  of  the  latter.     Motions  of 

1  Hans.  (1),  XVII.  1,  6,  8,  10. 

2  Cong.  Globe,  XV,   564.     But  see  Lloyd's  »  Hans.  (3),  I.  1042,  1043. 
Deb.  II.  257,  258;  ,J.  of  House,  31st  Cong.  1st  *  Hans.  (3),  XXXVII.  1305. 
Sess.  1011,  1012.  6Hans.  (1),  XXm.  S83. 


Chap.  VIIL]  reports  of  committees.  755 

this  kind  require  previous   notice,^  and   are   considered  in  every 
respect  in  the  same  manner  as  other  motions. 

1948.  A  committee,  as  we  have  seen,  has  no  other  authority 
than  to  do  as  it  is  ordered  by  the  house,  or  to  report  its  opinion 
upon  the  subject  referred  to  it,  but  it  has  no  authority,  unless  ex- 
pressly conferred  upon  it,  to  report  for  the  consideration  of  the 
house,  any  act  of  legislation,  as  a  bill,  or  joint  resolution.  It  is  a 
common  practice,  however,  in  this  country,  to  authorize  a  commit- 
tee to  report  by  "  bill,  or  bills,  or  otherwdse."  This  authority  is 
either  conferred  by  the  order  for  the  appointment  of  the  committee, 
or  by  some  subsequent  order,  or  more  commonly  by  a  standing 
order.  In  these  cases,  where  a  committee  reports  a  bill,  the  bUl 
may  be  either  the  report,  or  an  addition  to  the  report.  In  either 
case,  the  reception  of  the  report  of  the  committee  is  equivalent  to 
the  reception  of  the  bill  of  the  house,  in  the  same  manner  as  if 
presented  by  its  order. 

1949.  Where  the  functions  of  a  committee  are  not  merely  cleri- 
cal, or  the  paper  before  it  does  not  originate  with  itself,  it  has  no 
authority  to  erase  or  add  to  the  paper  before  it,  but  must  set  down 
ita  amendments  even  where  directed  by  the  house  to  make  them  in 
its  report ;  but  with  this  exception,  the  committee  has  fuU  power 
over  the  paper  committed  to  it,  if  any,  though  they  cannot  change 
the  title  or  the  subject''^ 


CHAPTER  EIGHTH. 

OF  MAKING  THE  REPORT  AND  PROCEEDINGS  THEREON. 

1950.  When  a  report  is  to  be  made  from  a  committee,  the  chair- 
man, or  other  member  charged  with  the  duty  of  making  it,  rises  in 
his  place,  and  addressing  the  speaker,  and  being  responded  to  by 
him,  informs  the  house,  that  he  is  directed  by  such  a  committee,  to 
report  the  matter  to  the  house ;  and  thereupon  reads,  or  is  supposed 
to  read  the  report  in  his  place ;  he  then  appears  and  takes  his  seat 
at  the  bar,  with  the  report  and  other  papers  in  his  hand.     The 

»  Pari.  Reg.  LX.  391,  395, 396.    Cong.  Globe,  «  Jefferson's  Manual,  Sec.  XXVI. 

XI.  319,  324. 


/ 


756 


LEGISLATIVE   ASSEMBLIES. 


[Part  VII. 


speaker,  seeing  him  there,  inquires  what  he  holds  in  his  hand  ?  The 
member  answers  that  it  is  the  report  of  such  a  committee.  There- 
upon a  motion  is  made,  or  supposed  to  be  made,  either  by  the 
member  himself,  or  by  some  other,  and  a  question  put,  that  the  re- 
port be  brought  up  to  the  table,  or,  in  other  words,  that  it  be 
received.^ 

1951.  "Where  the  reporter  from  a  committee,  who  may  either  be 
the  chairman,  or  some  other  member  directed  by  the  committee, 
reports  a  series  of  resolutions,  or  other  papers  originating  with  1he 
committee,  he  reports  it  in  a  clean  draft,  with  all  the  amendments, 
if  any,  which  have  been  adopted,  duly  wnritten  in ;  but  where  he 
reports  amendments  to  a  biU  or  other  paper,  which  is  referred  by 
the  house  to  the  committee,  in  making  the  report,  he  reads  the 
amendments  with  the  coherence  in  the  papers,  and  opens  the  alter- 
ations, and  the  reasons  for  the  amendments,  until  he  has  gone 
through  with  the  whole.  He  then  deUvers  in  the  bill  or  other 
paper  at  the  clerk's  table,  when  the  amendments  are  read  by  the 
clerk,  without  the  coherence,  Avhereupon  the  papers  lie,  till  the 
house  at  its  convenience  proceeds  with  the  business.^ 

1952.  On  the  question  of  bringing  up  the  report,  it  is  competent 
to  any  member  to  object  to  receiving  the  report  on  the  ground  of 
any  ^regularity,  either  of  form,  as,  for  example,  that  the  report  is 
fuU  of  erasures  and  interlineations,'^  or,  of  substance,  as,  for  exam- 
ple, that  it  is  not  within  the  powers  of  the  committee  ;  *  or  to  go 
into  a  general  debate  of  the  subject-matter;  but  it  is  not  in  order 
to  move  to  amend  the  report ;  it  must  either  be  received  or  rejected, 
as  it  is ;  °  and  no  motion,  except  for  recommitment,^  can  be  made 
in  relation  to  it,  until  it  has  been  received." 

195-3.  The  practice  in  this  country,  in  making  a  report,  is  some- 
what different.  There  is  no  formality  of  going  to  the  bar  and 
bringing  up  reports  from  thence.  Whenever  the  chairman  or 
other  member  of  the  committee  is  ready  to  report,  he  obtains  pos- 
session of  the  house,  or  is  called  to  by  the  speaker,  for  the  pur- 
pose, and  announces  that  he  has  a  report  from  such  a  committee. 
He  thereupon  proceeds  in  his  place  to  read  the  report  in  question. 
If  the  report  is  objected  to  by  anybody,  either  on  the  ground  of 
form,  as  not  being  properly  prepared,  according  to  the  orders  of  the 
house,  or  of  substance,  as  not  being  within  the  jurisdiction  of  the 


1  See  Com.  Jour.  XV.  102, 189. 

2  Jefferson's  Manual,  Sec.  XXVII. 
»  Hans.  (1),  XVn.  1,  6,  8,  10. 

»  Pari.  Reg.  (2),  XXI.  505 


6  Hans.  (3),  XV.  524. 

«  Hans.  (1),  XVn.  1,  6,  8,  10. 

J  Pail.  Reg.  LXV.  153. 


Chap.  VIIL]  reports  of  committees.  757 

committee,  this  raises  the  question  of  the  reception.  If  the  objec- 
tion is  on  the  ground  of  order,  a  question  is  presented  in  the  first 
instance  for  the  presiding  officer  to  decide.  If  the  ground  of  order 
IS  overruled,  or  the  rejjort  is  suffered  to  proceed  notwithstanding, 
or  a  suspension  of  the  rules  takes  place,  then  the  question  of  re- 
ception is  to  be  put  to  the  house  or  supposed  to  be  so,  and  if  de- 
cided in  the  affirmative,  the  report  is  accordingly  received  and 
further  proceedings  liad  thereon.  If  the  objection  is  not  one  of 
order,  the  question  of  reception  is  to  be  put  at  once  to  the  house. 

19-54.  If  this  question  should  be  decided  simj)ly  in  the  negative, 
of  which  there  are  instances,^  it  is  not  apparent  what  the  precise 
effect  of  the  decision  would  be,  —  whether  the  committee  would 
be  discharged,'-  and  the  matter  there  stop,  —  or  whether  the  refus- 
ing to  receive  the  report  would  be  equivalent  to  a  recommitment ; 
but,  at  all  events,  if  the  decision  were  upon  the  ground  of  an  infor- 
mality in  the  report,  it  would  undoubtedly  be  followed  by  a  recom- 
mitment. 

1955.  If  the  question  is  decided  in  the  affirmative,  the  chairman 
then  brings  up  the  report,  and  delivers  it  in  at  the  clerk's  table. 
The  next  step,  in  the  regular  course  of  proceedings,  is,  for  a  mo- 
tion to  be  made,  usually  by  the  reporter,  and  a  question  put,  "  that 
the  report  be  now  read."  On  this  question,  the  same  proceedings 
may  take  place  as  on  the  former  motion,  that  the  report  be 
brought  up.  But,  according  to  the  practice  in  modern  times,  this 
question  is  only  supposed  to  be  put,  being,  in  point  of  fact,  omit- 
ted, and  the  report  read,  without  a  question.  If  the  question  of 
reading  should  be  made,  and  decided  in  the  negative,  it  does  not 
appear  that  any  other  motion  could  be  made  with  reference  to  the 
report,  but  to  recommit  it.  No  other  motion,  it  seems,  could  be 
made  in  the  regular  com-se  of  proceeding,  without  first  reading  the 
report. 

1956.  The  proceedings  with  reference  to  a  report  are  the  same, 
whatever  the  form  of  it  may  be,  until  it  is  brought  up  and  read 
and  the  house  has  proceeded  to  take  it  into  consideration.  After 
this  point,  the  proceedings  may  be  different  according  as  the  re- 
port concludes  or  not,  with  resolutions  or  other  propositions,  which 
are  reported  for  the  purpose  of  being  acted  upon  and  agreed  to  by 
the  house.     The  proceedings,  if  any,  which  take  place  between  the 

1  Comm.  Jour.  XV.  189.  committee   would  be  Junctus  officio,  unlew 

a  If  this  were  the  final  report  of  the  commit-     revived, 
tee  which  had  adjourned  without  d;iv,  the 

64 


758  LEGISLATIVE  ASSEMBLIES.  [PaRT  VIL 

bringing  up  and  the  consideration  of  the  report,  are  also  the  same, 
without  regard  to  the  form  of  the  report. 

1957.  When  a  report  is  brought  up  and  read,  there  are  several 
courses  of  proceeding  which  may  be  adopted:  —  1.  No  motion 
whatever  may  be  made  in  reference  to  it,  in  which  case,  it  remains 
to  be  taken  into  consideration  afterwards,  whenever  the  house 
may  think  proper ;  2.  It  may  be  ordered,  on  motion,  to  lie  on  the 
table,  either  generally,  in  which  case,  no  other  order  can  regularly 
be  made  in  reference  to  it,  on  the  same  day,  or  specially,  untU 
some  specified  time,  in  which  case,  no  order  can  be  made  till  that 
time ;  3.  A  motion  may  be  made  for  taking  it  into  consideration 
on  a  future  day.  This  motion  may  be  so  framed,  by  naming  a  day 
beyond  the  session,  as  to  amount,  if  it  is  carried,  to  a  defeat  of 
the  measure ;  or  if  the  day  named  be  within  the  session,  it  may  be 
amended  into  a  day  beyond  the  session;  and,  in  either  case,  the 
motion  may  be  amended,  so  as  to  become  a  motion  for  present 
consideration  ;  4.  A  motion  may  be  made  for  the  recommitment  of 
the  report ;  or,  5.  If  neither  of  these  courses  is  pursued,  the  house 
may  proceed  with  the  consideration  of  the  report.  The  manner  of 
proceeding  may  then  be  different,  as  already  observed,  according  as 
the  report  contains  or  not  resolutions  or  other  propositions,  for  the 
consideration  of  the  house. 

1958.  If  the  report  does  not  conclude  with  or  contain  any  reso- 
lution or  other  propositions,  for  the  consideration  of  the  house,  or 
such  only  as  do  not  require  to  be  agreed  to  by  the  house,  it  does 
not  appear,  that  any  further  proceedings  in  reference  to  it,  as  a  re- 
port, are  necessary.  It  remains  in  the  possession  and  on  the  jour- 
nals or  files  of  the  house,  as  a  basis  or  ground  for  such  further  pro- 
ceedings, as  may  be  proper  or  necessary.  Resolutions  of  opinion 
may  be  moved  upon  it ;  or  a  motion  for  leave  to  bring  in  a  bUl 
may  be  predicated  upon  the  facts  stated  in  it ;  or  it  may  be  referred 
to  another  committee  for  their  consideration ;  or  it  is  presumed,  it 
may  be  amended.  Reports  of  this  description  contain  a  statement 
of  the  facts,  or  of  the  evidence  merely  relating  to  the  subject  of  in- 
quiry, and  are  not  accompanied  by  any  resolutions  or  other  propo- 
sitions, for  the  consideration  of  the  house.  A  resolution,  that,  in 
the  opinion  of  the  committee,  petitioners  have  fuUy  proved  the  facts 
set  forth  in  their  petition,  —  or,  that  the  house  be  moved  that  leave 
be  granted  for  a  bill  to  be  brought  in,  —  are  not  resolutions,  which 
require  to  be  agreed  to,  in  that  form,  by  the  house. 

1959.  If  the  report  concludes  with  or  is  accompanied  by  resolu- 
tions or  other  propositions,  which  are  proper  or  necessary  for  the 


Chap.  VIIL]  reports  op  committees.  75^ 

consideration  and  adoption  of  the  house ;  or  if  it  consists  of  such 
resolutions  or  propositions  alone,  as  is  the  case  with  the  reports  of 
committees  of  the  whole  ;  —  the  report  being  brought  up  and  read, 
and  thus  brought  before  the;  house,  there  are  several  diflercnt  ways 
of  proceeding  with  it  which  may  be  adopted,  namely,  the  first,  sec- 
ond, third,  and Jmrth  of  the  courses  already  indicated;  or,  Jifth,  it 
may  be  proceeded  with,  in  which  case,  the  appropriate  motion  is, 
that  the  report  be  read  a  second  time. 

1960.  The  motion  for  reading  the  report  a  second  time  may  be 
simply  negatived,  in  which  case,  it  is  competent  for  the  house  to 
dispose  of  the  report  in  either  of  the  ways  above  mentioned;  or  it 
may  be  amended,  by  substituting  for  present  reading  a  motion  for 
the  second  reading  within  or  beyond  the  session,  and  in  this  form 
agreed  to  or  negatived ;  or,  lastly,  the  motion  may  be  agreed  to,  in 
which  case,  the  resolutions  are  read  in  their  order ;  and,  as  each 
resolution  is  read,  a  motion  may  be  made,  that  the  house  agree  to 
it ;  or,  2,  that  the  resolution  be  amended;  or,  3,  that  it  be  recom- 
mitted ;  or,  4,  that  it  be  postponed,  that  is,  give  place  to  those  sub- 
sequent to  it. 

1.  If  the  resolution  is  agreed  to,  it  then  becomes  the  act  of  the 
house,  and  a  ground  for  further  proceedings,  according  to  its  natmre ; 
if  disagreed  to,  there  is  an  end  of  the  matter. 

2.  If  the  resolution  is  amended,  or  the  motion  to  amend  is 
rejected,  either  of  the  other  motions  may  then  be  made. 

3.  The  effect  of  a  recommitment  will  be  presently  stated.  If  the 
motion  to  recommit  is  negatived,  any  of  the  other  motions  above 
enumerated,  not  already  put  and  negatived,  may  be  made. 

4.  If  a  motion  to  postpone  is  carried,  the  resolution  so  postponed 
nay  be  afterwards  considered,  or  suffered  to  remain. 

1961.  When  any  one  of  these  motions  is  made  and  pending,  any 
ot  the  others  may  be  substituted  for  it,  by  way  of  amendment ;  thus 
on  the  motion  for  agreeing  to  the  first  resolution,  it  may  be  moved 
to  amend  the  motion  by  leaving  out  all  but  the  word  "  that,"  in 
order  to  insert  a  motion  for  a  recommitment,  or  amendment,  or 
postponement. 

1962.  On  all  the  motions  above  mentioned,  which  affect  the 
whole  report,  as  for  example,  that  it  lie  on  the  table,  or  that  the 
resolutions  be  read  a  second  time,  it  is  in  order  to  enter  into  a 
debate  of  the  whole  subject  embraced  in  the  report;  ^  and  it  is  not 
strictly  regidar,  on  any  such  motion,  to  make  objections  to  a  single 

1  Pari.  Reg.  (2),  XVIU.  415,  416. 


760  LEGISLATIVE  ASSEMBLIES.  [PaRT   Vll. 

resolution,  for  the  pui'pose  of  showing  that  it  ought  to  be  amended, 
or  recommitted,  or  rejected.^  On  the  other  hand,  on  all  questions 
which  relate  to  the  resolutions  individually,  as,  for  example,  on  the 
motion,  that  a  particular  resolution  be  agreed  to,  it  is  not  strictly 
regular  to  go  into  a  general  line  of  argument,  as  to  the  whole 
report;  but  the  debate  should  be  confined  to  the  particular  resolu- 
tion under  consideration.'^  These  rules,  however,  must  always  be 
qualified,  in  their  application,  by  the  general  rules  relating  to  rele- 
vancy in  debate. 

1963.  It  is  in  order,  at  any  time,  before  resolutions  are  agreed  to, 
to  recommit  the  whole,  or  any  one  or  more  of  them.^  But,  if  this 
motion  is  made  whilst  any  other  motion,  as,  for  example,  a  motion 
that  the  report  lie  on  the  table,  is  pending,  the  motion  to  recommit 
must  be  considered  and  put  as  an  amendment  to  the  motion  pend- 
ing.^ 

1964.  The  effect  of  a  recommitment,  for  any  cause,  is  to  undo 
all  that  has  previously  been  done  in  the  house,  with  reference  to 
the  report,  and  to  throw  back  the  subject  into  the  hands  of  the 
committee  for  their  revision  or  completion,  or  for  whatever  other 
purpose  the  recommitment  may  be  ordered,  as  for  the  purpose 
merely  of  revision,^  or  of  being  taken  into  a  new  di-aft ;  ^  though,  of 
course,  it  does  not  impose  upon  the  committee  any  obligation  to 
go  again  over  the  whole  matter,  or  to  reexamine  the  witnesses 
already  fuUy  and  properly  examined.  A  recommitment  generally 
takes  place  for  some  cause,  which  sufficiently  indicates  to  the  com- 
mittee what  they  are  expected  to  do,  and,  hence,  it  is  not  usual  for 
instructions  to  be  given  on  recommitment ;  but  the  committee  are 
to  gather  from  the  sense  of  the  house  in  their  proceedings  what 
method  they  are  to  pursue."  When  a  report  is  thus  recommitted, 
the  committee,  with  aU  its  powers,  appears  to  be  thereby  revived ; 
and  it  is  only  necessary  to  appoint  a  time  for  the  committee  to  sit. 
The  report  made  by  a  committee  upon  recommitment  is  sometimes 
called  an  amendatory,^  or  a  revisionary  report.^ 

1965.  It  is,  of  course,  competent  for  the  house,  at  any  time 
before  the  resolutions  are  agreed  to,  to  adjourn  the  debate,  or  to 


1  Pari.  Reg.  XVII.  214;  Same,  XLIIL  632;  6  j,  of  C.  VI.  128. 

Same,  LVI.  658.  ^  Pari.  Reg.  XIX.  195,  230;    Hans.  (1),  V 

2  Pari.  Reg.  LXII.  122;  Same,  LVI.  658.  163. 

3  Pari.  Reg.  XIX.  105,  230;    Hans.  (1),  V.  ^  j.  of  H.  II.  127;   Same,  IV.  132;   Same 
163.  VII.  78. 

*  Hans.  (1),  XVII.  171,  175.  «  J.  of  H.  I.  704. 
»  J.  of  C.  VI.  208. 


CuAP.  VIIL] 


REPORTS   OF   C0M2UTTEES. 


76) 


order  the  report  to  be  taken  into  further  consideration,  on  a  subse- 
quent day. 

1966.  Resolutions,  reported  by  a  committee,  and  agreed  to  by 
the  house,  are  grounds  for  the  house  to  proceed  upon,  without  any 
further  investigation.^ 

1967.  It  is  hardly  necessary  to  observe  that  a  report  may  be 
dealt  with  in  parts;  thus,  a  part  of  a  report  may  be  ordered  to  lie 
on  the  table,'-  or  a  part  of  it  recommitted,'^  disagreed  to,'*  or  agreed  to.'^ 
The  whole  report,  being  under  consideration,  must,  of  course,  be  dis- 
posed of  in  some  regular  parliamentary  manner. 

1968.  According  to  a  practice  begun  in  congress  about  thirty 
years  ago,  and  now  prevailing  in  all  our  legislative  assemblies, 
though  it  is  not  known  to  the  parliamentary  law  of  Great  Britain, 
the  views  of  those  members  of  a  committee,  who  do  not  concur  in 
the  report,  are  allowed  to  be  presented  to  the  house  to  which  such 
committee  belongs.  These  documents,  under  the  somewhat  incon- 
gruous name  of  minaritij  reports,  may  emanate  from  any  one  or  all, 
or  any  two  or  more,  of  the  members  of  the  minority  of  the  com- 
mittee, and  may  be  presented  when  the  report  is  made,  or  after- 
wards, or  even  before.  They  are  received  by  the  courtesy  of  the 
house,  expressed  by  the  ordinary  vote  of  a  majority,^  and  usually 
receive  the  same  destination  with  the  report  ;  that  is,  they  are 
printed,  postponed,  and  considered  in  the  same  manner.  But  they 
are  not,  in  any  parliamentary  sense,  reports,  nor  entitled-  to  any 
privilege  as  such ;  and  their  only  effect  is,  in  the  first  place,  to 
operate  upon  the  minds  of  members  as  arguments,  and,  secondly, 
to  serve  as  the  basis  for  amendments  to  be  moved  on  the  reso- 
lutions, or  other  conclusions,  of  the  report.  K  they  contain  or  rec- 
ommend a  bill,  it  is  read  not  as  a  biU,  but  as  a  part  of  the  report, 
and  for  the  information  of  the  house.'' 


1  Pari.  Res-  (2),  XVIU.  23. 
«  J.  of  H.  I.  281. 
«  J.  of  CIV.  415. 
♦  J.  of  H.  I.  194,  3S1. 


»  J.  of  H.  I.  451. 
»  Cong.  Globe,  VIII.  257. 
'  J.  of  H.  24th  Cong.  1st  Sess.  561 ;  Cong. 
Globe,  XI.  248;  Same,  815;  Same,  XXI.  1345. 


64- 


LAW    AND    PRACTICE 


ov 


LEGISLATIVE    ASSEMBLIES. 


PART    SEVENTH. 

OF    COMMITTEES    AND    THEIR    FUNCTIONS. 


SECOND    DIVISION. 

COIkOnXTEES    OF   THE   WHOLE. 

1969.  Committees  of  the  whole  house  are  composed  of  all  the 
members,  and  sit  in  the  house,  while  the  house  is  sitting.^  Select 
committees,  as  has  already  been  seen,  consist  of  a  small  number 
of  members  only,  who  sit  apart  from  the  house,  though  in  rooms 
belonging  to  the  house,  while  the  house  is  not  sitting.  These  dif- 
ferences in  the  constitution  of  the  two  kinds  of  committees  are 
accompanied  by  corresponding  differences  in  their  nature,  functions, 
and  proceedings.  While,  therefore,  as  committees,  they  possess 
many  points  of  resemblance ;  as  bodies  differently  constituted  and 
for  different  purposes,  they  present  many  points  of  dissimilarity. 
These  differences  will  appear  in  what  is  now  to  be  said  of  com- 
mittees of  the  whole. 

1  AppeudLx,  XV. 

*  (763) 


764  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII. 


CHAPTER    FIRST. 

APPOINTMENT    OF    A    COMMITTEE    OF    THE    WHOLE. 

1970.  In  order  to  the  appointment  of  a  committee  of  the  whole, 
it  is  necessary  that  the  house  should  resolve,  first,  that  a  particular 
subject  be  referred  to  the  consideration  of  a  committee  of  the 
whole  house,  and  also,  that  on  a  day  named,  or  forthwith,  it  will 
resolve  itself  into  a  committee  of  the  whole  house  upon,  or  to  con- 
sider of,  that  subject.  The  latter  resolution  is  equivalent  both  to 
the  naming  of  the  members  to  constitute  a  select  committee,  and 
to  the  order  directing  the  time  and  place  of  their  meeting. 


CHAPTER  SECOND. 

SITTING  OF  A  COMMITTEE   OF   THE  WHOLE. 

1971.  A  committee  of  the  whole,  besides  being  constituted  of  all 
the  individual  members,  is  also  to  be  formed  by  an  act  of  the  house 
itself.i  It  is,  consequently,  not  competent  for  the  members  to 
assemble  themselves  together  at  the  time  appointed  and  to  proceed 
as  a  committee ;  but  the  house  must  be  regularly  met  and  sitting, 
at  the  time  appointed,  in  order  that  it  may  then  resolve  itself  into  the 
committee,  agreeable  to  its  previous  resolution.  According  to  the 
practice  of  the  senate  of  the  United  States,  that  body  is  not  always 
formed  into  a  committee  of  the  whole,  but  merely  resolves  that  a 
particular  matter  pending  therein  shall  be  considered  as  in  a  com- 
mittee of  the  whole.  In  this  case,  no  chairman  is  appointed,  but 
the  matter  in  question  is  considered  as  in  a  committee,  and  after- 
wards reported  upon  to  the  senate,  and  proceeded  with  accordingly. 
This  is  what  Mr.  Jefferson  speaks  of  as  a  quasi-committee. 

1  Jefferson's  Manual,  Sec.  XXX. 


Chap.  III.]         chaikman  and  clerk  op  the  committee.  V65 

1972.  An  order,  for  the  appointment  of  a  committee  of  the 
whole,  may  be  rescinded  or  discharged  at  any  time  after  its  adop- 
tion; in  which  case,  Ihe  matter  referred  to  its  consideration  imme- 
diately resumes  its  place,  which  it  would  otherwise  have  occupied 
in  the  business  of  the  assembly.^ 

1973.  The  house  being  regularly  met  and  sitting,  on  the  day 
appointed  for  the  committee  to  sit,  the  course  of  proceeding,  for 
resolving  into  the  committee,  is,  in  the  first  place,  to  move  that  the 
order  of  the  day  for  going  into  the  committee  be  read,  and  this 
motion  being  decided  in  the  affirmative,  and  the  order  read  accord- 
ingly, a  motion  is  then  to  be  made,  that  the  speaker  do  now  leave 
the  chair.  If  this  motion  is  carried,  the  speaker  leaves  the  chair  of 
the  house,  and  the  chair  of  the  clerk,  which  is  the  chair  of  the  com- 
mittee, is  taken  by  some  member,  and  the  house  is  then  resolved 
into  the  committee. 

1974.  At  the  same  time,  that  the  speaker  leaves  the  chair,  the 
sergeant-at-arms  removes  the  mace  from  the  table,  and  places  it 
under  the  table,  where  it  remains,  while  the  house  is  in  committee. 
K  the  resolution  of  the  house  is  for  going  immediately  into  the  com- 
mittee, the  motion  for  the  speaker  to  leave  the  chair  follows  at 
once. 


CHAPTER     THIRD. 

CHAIR^L^J^    AND    CLERK    OF    THE    COMMITTEE. 

1975.  When  the  speaker  leaves  the  chair,  some  one  of  the  mem- 
bers is  called  by  the  house  to  take  the  chair  of  the  committee,  and 
if  no  other  member  is  named^  the  member  so  called  takes  the  chair 
as  a  matter  of  course ;  but  if  there  is  any  opposition  to  such 
member,  that  is,  if  any  other  member  is  called  to  the  chau-,  the 
speaker  thereupon  resumes  the  chair  of  the  house  at  once,  and 
the  house  proceeds,  upon  nomination,  to  appoint  a  chairman  for  the 


1  ^Vhe^e  a  committeeof  the  whole,  to  whom  named  bill,  it  was  held,  that  the  committee 

ft  bill  had  been  referred,  and  to  whom  also  was  thereby  dissolved.    J.  of  H.  15th  Cong. 

another  bill  has  been  afterwards  referred,  was  Ist  Sess.  277. 
discharged  from  the  consideration  of  the  first- 


766  LEGISLATIVE  ASSEMBLIES.  [PaRT    VIL 

committee  ^  A  chairman  being  thus  appointed,  the  speaker  again 
leaves  the  chair  of  the  house,  and  the  former  takes  the  chair 
of  the  committee. 

1976.  When  the  house  of  commons  is  in  committee  of  the 
whole,  —  the  chairman  then  occupying  the  chair  of  the  clerk,  —  it 
has  always  been  the  practice  for  the  clerk  assistant,  alone,  and  not 
the  clerk,  to  act  as  clerk  of  the  committee,  and  to  make  out  its 
reports.^ 

1977.  The  proceedings  of  a  committee  of  the  whole,  like  those 
of  other  committees,  are  not  recorded  on  the  journal  of  the  house, 
according  to  the  ordinary  course  of  parliament.  But,  on  the  23d 
of  February,  1829,  the  house  of  commons  assented  to  a  suggestion 
of  the  speaker,  that  the  proceedings  in  committee  ought  to  be 
entered  on  the  journal,  and  arrangements  were  accordingly  made  for 
that  purpose ;  since  which  time,  the  proceedings  of  that  house  in 
committee  are  regularly  recorded.-^ 

1978.  In  the  house  of  commons,  the  member,  who  is  appointed 
to  the  chaii-,  when  the  house  is  resolved  into  a  committee  of  sup- 
ply, on  the  first  occasion  for  resolving  into  that  committee,  is  con- 
sidered as  the  chairman  of  committees  during  the  session,  and  takes 
the  chair  generally  whenever  the  house  resolves  itself  into  a  com- 
mittee of  the  whole.^  In  the  house  of  lords,  a  chairman  of  com- 
mittees is  appointed,  at  the  commencement  of  each  session,  in 
pursuance  of  a  standing  order,  whose  duty  it  is  to  take  the  chair,  in 
aU  committees  of  the  whole  house,  unless  the  house  shall  otherwise 
direct.^ 

1979.  The  duties  of  the  chairman  of  a  committee  of  the  whole 
in  the  commons  are  analogous  to  those  of  the  speaker,  whilst  the 
house  is  sitting,  and,  in  the  house  of  lords,  to  those  of  the  lord 
chancellor ;  to  receive  motions,  put  questions,  announce  the  result 
of  divisions,  and,  generally,  to  conduct  the  proceedings  and  to  pre- 

1  Comm.  Jour.  XIV.  455.    In  this  country,  mittees  are  deemed  so  important,  in  the  house 

it  is  common  to  provide,  by  a  special  rule,  of  cpmmons,  that  from  the  time  of  the  revolu- 

that  the  speaker  or  other  presiding  officer  tion  until  the  commencement  of  the  present 

shall  appoint  the  chairman  of  committees  of  century,  the   member  by  whom   they   were 

the  whole.  discharged  received  an   annual  salary;    and 

'  Hatsell,  IL  273,  274;   May,  295.        It  is  since  the  latter  period  he  has  received  com- 

from  this  circumstance,  says  Mr.  Hatsell,  that  pensation  for  his  services,  in  the  form  of  a 

the  office  of  clerk  assistant  is  much  the  most  grant  of  money,  at  the  end  of  every  session, 

laborious  of  the  two,  as  the  principal  business  Hans.  (1),  VIII.  230,231.    By  a  standing  or- 

of  the  house  .of  commons  is  generally  carried  der  of  the  4th  Aug.  1853,  the  chairman  of  the 

on  in  committees.  committee  of  ways  and  means  is  appointed  to 

*  May,  294.  take  the  chair  of  the  house,  as  speaker  pro 

*  May,  415.  tempore^  during  the  unavoidable  absence  of 

*  May,  286.    The  duties  of  chairman  of  com-  the  speaker. 


Chap.  IV.]  speaker  and  other  officers  while  in  committee.    767 

serve  order  in  the  committee,  as  its  presiding  officer ;  and,  on  the 
rising  of  the  committee,  to  make  its  report  to  the  house,  together 
with  such  motions  as  the  committee  may  direct  him  to  make. 

1980.  The  duties  of  the  chairman  of  committees  of  the  house  of 
commons  make  it  necessary  that  the  person  who  holds  it  should 
be  prepared  with  a  full  knowledge  of  the  business  of  the  house, 
and  all  its  public  duties ;  that  he  should  be  acquainted  with  and 
explain  its  orders,  when  in  a  committee ;  and  that  he  should  attend 
from  the  sitting  of  the  house  to  its  rising.  To  discharge  these  du- 
ties requires  time,  attention,  ability,  and  a  great  deal  of  personal 
labor.i 


CHAPTER    FOURTH. 

DUTIES  OF  THE   SPEAKER  AND   OTHER  OFFICERS  OF  THE  HOUSE, 
WHILE   THE   HOUSE   IS   IN   COMMITTEE   OF   THE   WHOLE. 

1981.  As  a  committee  of  the  whole  can  only  sit  while  the  house 
is  sitting,  —  being  in  fact  the  house  itself  sitting  in  committee,  — 
it  is  necessary  that  the  speaker  should  be  constantly  present  in  the 
committee,  and  take  official  notice  of  its  proceedings,  in  order  to 
resume  the  chair  of  the  house,  whenever  the  committee  shall  see 
fit  to  rise  and  report ;  or,  to  resume  it  without  any  direction  of  the 
committee,  when  any  public  business  shall  arise  in  which  the 
house  is  concerned,^  or  when  notice  is  taken,  and  it  appears,  that 
a  quorum  of  the  committee  is  not  present ;  or  in  case  any  sudden 
disorder  should  occur,  which  the  committee,  as  such,  would  have 
no  power  to  suppress.  For  the  same  reason,  the  other  officers  of 
the  house,  —  the  sergeant-at-arms,  clerk,  etc.,  —  should  also  be 
present,  in  order  to  resume  their  functions,  the  moment  the  chair 
is  taken  by  the  speaker.  It  is  for  this  reason,  also,  that  the  chair- 
man of  the  committee  does  not  occupy  the  chair  of  the  house,  but 
that  of  the  clerk,  at  the  table.  It  is  thus  in  the  power  of  the  speaker, 
whenever  the  exigency  requires  it,  to  take  the  chair  at  once,  and 

* 

1  Hans.  (1),  VIU.  230,  231.  executive,  if  one  is   announced  whiht  the 

*  In  our  legislative  assemblies,  the  speaker  house  is  in  committee.     When  in  the  chair  of 

resumes  the  ch:iir  informally   to  receive   a  the  hou^o,  he  may  be  detained  there  by  the 

message  from  the  other  branch  or  from  the  intervention  of  other  business. 


768  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII 

resume  the  house.     The  following  are  examples  of  proceedings  of 
this  description. 

1982.  If  any  doubt  should  arise  in  the  committee,  as  to  a  point 
of  order,  or  other  proceeding,  which  the  committee  cannot  agree 
upon,  or  which  may  appear  to  be  beyond  their  province  to  decide, 
the  course  is  to  direct  the  chairman  to  leave  the  chair,  report  pro- 
gress, and  ask  leave  to  sit  again,  for  the  purpose  of  obtaining  the  in- 
struction or  direction  of  the  house  in  reference  to  the  matter  in  ques- 
tion. Thus,  on  the  2d  March,  1836,  a  debate  having  concluded  in 
committee,  the  chairman  stated,  that  before  he  put  the  question,  he 
wished  to  have  the  opinion  of  the  committee  as  to  the  manner  in 
which  the  committee  should  be  divided,  in  case  of  a  division ;  and 
it  being  the  opinion  of  the  committee,  that  that  matter  ought  to  be 
decided  by  the  house,  the  chairman  left  the  chair  ;  and  ]Mr.  Speaker 
having  resumed  the  chair,  the  chairman  reported  that  a  point  of 
order  had  arisen  in  the  committee,  with  respect  to  the  manner  in 
which  the  committee  should  be  divided,  upon  which  the  committee 
wished  to  be  instructed  by  the  house.  The  house  proceeded  to 
consider  this  point,  and  IVIr.  Speaker  having  been  requested  to 
give  his  opinion,  stated  it  to  the  house  ;  after  which  the  house 
again  resolved  itself  into  the  committee,  the  question  was  imme- 
diately put,  and  the  committee  divided  in  the  manner  pointed  out 
by  the  speaker."  ^ 

1983.  K  any  public  business  should  arise  in  the  commons,  in 
which  the  house  is  concerned,  as  if  the  house  should  be  summoned 
to  attend  the  queen  or  lords  commissioners  in  the  house  of  peers, 
or  if  the  time  has  arrived  for  holding  a  conference  with  the  lords, 
the  speaker  resumes  the  chair  at  once,  without  any  report  from  the 
committee. 

1984.  So,  also,  if  any  sudden  disorder  should  occur,  by  which 
the  honor  and  dignity  of  the  house  are  likely  to  be  affected,  the 
speaker  would  be  justified  in  resuming  the  chair  immediately,  with- 
out waiting  for  the  ordinary  forms.  The  following  is  an  instance 
of  this  proceeding,  wnich  occT;irred  in  one  of  the  parliaments  of 
Charles  IL,  during  the  speakership  of  Sir  Edward  Seymour.  "  On 
the  10th  May,  1675,  a  serious  disturbance  arose  in  a  grand  com- 
mittee, in  which  bloodshed  was  threatened ;  when  it  is  related 
that  'the  speaker  very  opportunely  and  prudently  rising  from  his 
seat  near  the  bar,  in  a  resolute  and  slow  pace,'made  his  tlu*ee  re- 
spects through  the  crowd,  and  took  the  chair.'     The  mace  having 

»  Comm.  Jour.  XCI.  104;  May,  290. 


Chap.  V.]     on  going  into  a  committee  of  the  whole.  769 

been  forcibly  laid  upon  the  table,  all  the  disorder  ceased,  and  the 
gentlemen  went  to  their  places.  The  speaker  being  sat  spoke  to 
this  purpose :  '  That  to  bring  the  house  into  order  again,  he  took 
the  chair,  though  not  according  tp  order.'  No  other  entry  appears 
in  the  journal  than  that '  Mr.  Speaker  resumed  the  chair;'  but  the 
same  report  adds,  that  though  '  some  gentlemen  excepted  against 
his  coming  into  the  chair,  the  doing  it  was  generally  approved  as 
the  only  expedient  to  suppress  the  dit^order.' "  ^ 

1985.  A  similar  case  has  occurred  more  recently  in  the  house  of 
commons.  "  On  the  27th  February,  1810,  a  member  who,  for  dis- 
orderly conduct,  had  been  ordered  into  custody,  returned  into  the 
house  during  the  sitting  of  a  committee,  in  a  very  violent  and  dis- 
orderly manner ;  upon  which  Mr.  Speaker  resumed  the  chair,  and 
ordered  the  sergeant  to  do  his  duty.  When  the  member  had  been 
removed  by  the  sergeant,  the  house  again  resolved  itself  into  the 
committee."  ^ 

1986.  The  house  has  also  been  resumed  on  account  of  words 
of  heat  or  dispute  between  members.^ 


CHAPTER  FIFTH. 

PEOCEEDINGS  ON  GOING  INTO  A  COMMITTEE  OF  THE  WHOLE. 

1987.  A  committee  of  the  whole  being  usually  appointed  by  a 
previous  resolution,  that  the  house  will,  on  a  certain  future  day,  re- 
solve itself  into  a  committee  of  the  whole,  for  the  consideration  of 
the  subject  in  question, — which  resolution  is  thus  an  order  of  the 
day  for  the  day  assigned,  —  when  that  day  arrives,  and  the  house 
is  sitting,  the  first  step  is  for  a  motion  to  be  made,  that  the  order 
of  the  day,  for  going  into  the  committee,  be  read.  If  no  such 
motion  is  made,  or  if  made  and  negatived,  the  order  drops;  in 
which  case,  the  reference  of  the  subject  to   a  committee  of  the 

»  Grev,  in.  129;  May,  291.  1st  Sess.  488,  846,  847;  Cong.  Globe,  VI.  422; 

>  Comm.  Jour.  LXV.  134  ;  May,  292.    The  Same,  Vni.  343. 

Bame  practice  prevails  here.    See  J.  of  H.  '  Comm.   Jour.  X.    606;    Same,   XI.  480; 

25th  Cong.  2fl  Sess.  1012,  1013,  1014:  Same,  Same,  XLIIT.  467;  May,  292. 
•^eth  Cong.  1st  Sess.  814;  Same,  27th  Cong. 

65 


770  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII. 

whole  remains  a  subsisting  order  of  the  house,  to  be  carried  into 
execuuon  at  such  other  time  as  the  house  may  think  proper.  If 
the  motion  is  decided  in  the  affirmative,  the  order  is  read,  and  the 
busines-  which  it  contemplates  is<thus  brought  under  the  considera- 
tion of  the  house.  The  order  being  read,  the  house  may  dther, 
1,  drop  it ;  2,  discharge  it ;  3,  postpone  it ;  or,  4,  proceed  with  it. 

1983.  I.  If  the  house  does  not  think  proper  to  proceed  with  the 
business  at  that  time,  or  to  fix  upon  any  future  day  for  its  consid- 
eration, the  course  is  to  let  the  order  drop,  without  making  any 
motion  in  reference  to  it.  The  business  then  stands  precisely  as  if 
the  house  had  resolved  to  refer  the  matter  to  a  committee  of  the 
whole,  and  had  stopped  there,  without  appointing  any  time  for 
resolving  into  the  committee. 

1989.  II.  If  the  house  thinks  proper  to  withdraw  a  subject  from 
the  consideration  of  a  committee  of  the  whole,  the  course  is  to 
move  that  the  order  be  discharged.  If  this  motion  is  decided  in 
the  affirmative,  the  subject  is  then  in  the  same  predicament  as 
before  the  order  was  made. 

1990.  III.  If  the  house  thinks  proper  to  proceed  with  the  order, 
but  not  until  some  future  day,  the  course  is  to  renew  the  order  for 
such  future  day  as  may  be  agreed  on,  by  a  motion  for  that  purpose. 
If  this  motion  is  decided  in  the  affirmative,  the  business  is  then  in 
the  same  situation  as  if  the  time  so  resolved  upon  had  been  orig- 
inally resolved  upon  for  going  into  the  committee. 

1991.  IV.  If  tlie  house  thinks  proper  to  proceed  with  the  order, 
the  course  is  to  move,  that  the  speaker  do  now  leave  the  chair ; 
and  if  this  motion  is  decided  in  the  affirmative,  the  speaker  leaves 
the  chah,  and  the  committee  proceeds  with  the  business  referred  to 
it.  But,  upon  this  motion,  it  is  still  in  the  power  of  the  house  to 
drop  the  order  or  to  postpone  it  to  a  future  day.  If  the  motion  is 
decided  in  the  negative,  that  is,  that  the  speaker  do  not  now  leave  the 
chair,  and  no  further  motion  is  made,  the  order  drops.  The  effect 
of  this  is-,  that  the  house  cannot  resolve  itself  into  the  committee 
on  the  same  day ;  and  that  the  business  stands  in  the  same  posi- 
tion, as  if  no  order  had  been  made  for  the  appointment  of  the  com- 
mittee ;  but  the  order  may  be  renewed  at  any  time  for  a  future  day. 
The  committee  may  also  be  postponed  on  this  motion,  without  first 
deciding  it  in  the  negative,  by  means  of  an  amendment.  The 
motion  being,  "  that  the  speaker  do  now  leave  the  chair,"  a  motion 
may  be  made  to  amend  by  leaving  out  all  the  words  of  the  motion 
except  the  word  "  that,"  in  order  to  insert  the  words  "  the  hou^ 


Chap.  VL]   proceedings  in  committee  of  the  whole.  771 

will,"  on  snch  a  day,  "  resolve  itself  into  the  said  committee."  * 
This  amendment  may  be  so  worded,  either  originally  or  by  means 
of  an  amendment,  as  to  postpone  the  committee  to  a  day  beyond 
the  session ;  in  which  case,  the  measure  is  defeated  altogether. 

1992.  When  the  order  of  the  day  for  going  into  the  committee 
has  been  read,  and  before  the  motion  is  made  that  the  speaker  do 
now  leave  the  chair,  the  proper  time  occurs  for  moving  instructions 
to  the  committee,  and  for  referring  petitions  and  other  paj)ers  con- 
nected with  the  subject,  to  its  consideration.  If  the  motion  for  the 
speaker  to  leave  the  chair  is  first  made,  it  must  be  withdrawn  be- 
fore a  motion  to  instruct  or  refer  can  be  made,  unless  the  latter  is 
put  as  an  amendment,  that  is,  that  all  the  words  of  the  motion  but 
the  word  "that,"  be  left  out,  in  order  to  insert  the  instruction  or 
reference  as  a  substitute.  This  is  the  proper  time,  also,  when  there 
is  to  be  a  hearing  before  the  committee,  for  the  witnesses  and  coun- 
sel to  be  called  in.^ 

1993.  "When  the  motion  has  been  put  and  agreed  to,  that  the 
speaker  do  now  leave  the  chair,  it  is  not  in  order  for  any  member 
to  speak ;  either  addressing  himself  to  the  speaker,  before  he  has 
left  the  chair,'  or  to  the  clerk  after  he  has  left  it.'*  When  the  house 
has  resolved  itself  into  the  committee,  and  the  chairman  has  taken 
the  chair,  he  proceeds  to  lay  before  the  committee  the  business 
referred  to  it. 


CHAPTER     SIXTH. 

OF   THE   PROCEEDINGS   IN   COMMITTEE   OF   THE   WHOLE. 

1994.  The  general  rule,  in  regard  to  the  forms  of  proceeding  in 
committees,  both  select  and  of  the  whole,  is,  that  they  are  regulated 
by  the  same  rules,  in  substance,  by  which  analogous  proceedings 
of  the  house  to  which  they  belong  are  regulated.'*  Business  pro- 
ceeds therein  by  means  of  motions  and  resolutions ;  questions  are 

1  II:\n«.  (3)  IX.  675.  same,  or  a  role  analogous  to  it,  is  very  com- 

2  I'arl.  Keg.  (2,)  XVII.  152.  monly  inserted  in  the  rules  and  orders  of  other 
s  Hans.  (3),  I  A'.  647.  legislative   assemblies   that,    "The   rules  of 

*  Hans.  (1),  XV.  302,  303.  proceedings  in  the  house  shall  be  observed  in 

*  It  is  provided,  by  a  nile,  in  the  house  of     a  committee  of  the  whole  house,  so  far  aa 
representatives  of  the  United  States,  and  the     they  may  be  applicable." 


772  LEGISLATIVE   ASSEMBLIES.  [PaRT    Vlt 

put  and  taken ;  divisions  take  place  and  the  rules  of  proceeding 
and  debate  are  observed ;  in  substantially  the  same  manner,  as  in 
the  house.  Committees  of  the  whole  differ,  in  many  respects,  from 
the  house.  The  differences,  between  the  proceedings  of  committees 
of  the  whole  and  those  of  select  committees,  on  the  one  hand,  and 
those  of  the  house,  on  the  other,  will  appear  in  what  follows. 


Section  I.     Quorum. 

1995.  A  committee  of  the  whole  house  consisting  of  all  the 
members,  the  rule  as  to  the  number  necessary  to  be  present,  in  order 
to  make  a  house,  has  been  extended  to  committees  of  the  whole. 
If,  therefore,  it  should  appear,  at  any  time,  that  the  number  of  mem- 
bers present  is  less  than  a  quorum,  (to  be  ascertained  in  the  same 
manner  as  in  the  house,)  that  is,  in  the  commons,  forty,  and  in  the 
lords,  three,  the  chairman  must  immediately  leave  the  chair  of  the 
committee,  and  the  speaker  resume  that  of  the  house.  The  chair- 
man, then,  by  way  of  report,  for  he  can  make  no  other,  informs  the 
speaker  of  the  cause  of  the  dissolution  of  the  committee.  When 
the  speaker  is  thus  informed  of  the  want  of  a  quorum  in  the  com- 
mittee, he  immediately  proceeds  in  the  same  manner  to  determine 
whether  there  is  a  quorum  then  present  in  the  house.  If  a  quorum 
should  appear  to  be  present,  the  house  may  immediately,  (and  this 
is  the  usual  course,)  resolve  itself  again  into  the  committee  and 
proceed  with  the  business.  If  a  quorum  should  not  appear  to  be 
present,  the  speaker  adjourns  the  house,  in  the  same  manner,  as 
when  the  number  of  members  present  falls  below  forty  during  the 
sitting  of  the  house.^ 


Section  II.     Authority  of  the  Committee. 

1996.  A  committee  of  the  whole,  like  other  committees,  deriving 
its  authority  solely  from  the  resolutions  and  votes  of  the  house,  is, 
in  like  manner,  confined  within  the  powers  delegated  to  it,  and  can- 
not consider  any  other  matters  than  those  which  have  been  regu- 
larly committed  to  it,  or  in  any  other  manner,  than  it  is  authorized, 
by  the  house. 

1  May,  292.    In  our  assemblies,  the  same  the  house,  a  quorum  does  not  appear  to  be 

rule  prevails  as  to  the  necessity  of  a  quorum,  present,  the  speaker  either  adjourns  the  house, 

and  the  number  of  members  to  constitute  it  or  waits  for  a  motio;\  to  that  effect,  as  in  other 

In  committee  of  the  whole.    If  on  resuming  cases. 


Chap.  VI.]     proceedings  in  committee  of  the  whole.  773 

1997.  It  is  a  consequence  of  this  principle,  that  a  motion  for  the 
previous  question  is  not  admissible  in  committee  of  the  wiioU' ; 
inasmuch,  as  if  the  subject  of  a  motion  is  not  within  the  authority 
of  'the  commitlce  to  consider,  it  may  be  suppressed  on  the  ground 
of  order ;  and,  if  within  its  authority,  the  consideration  of  it  ought 
not  to  be  suppressed  at  all.^ 

1998.  It  is  a  consequence  of  the  same  principle,  that  a  commit- 
tee of  the  whole  cannot  punish  any  of  its  members,  or  any  other 
person,  for  disobedience  to  its  orders,  disregard  of  its  authority,  or 
disorderly  conduct  or  words,  in  its  presence ;  nor  can  it  determine 
upon  the  form  of  proceeding  which  it  ought  to  pursue  when  any 
question  arises ;  in  all  which  cases  the  matter  should  be  reported  to 
the  house,  to  be  determined  upon  or  proceeded  with  there.- 

1999.  At  the  period  when  the  grand  committees  for  trade,  griev- 
ances, courts  of  justice,  etc.,  which  were  in  fact  committees  of  the 
whole  house,  were  in  use,  the  power  to  appoint  subcommittees  was 
considered  as  incident  to  them ;  ^  but  since  these  committees  have 
been  laid  aside  in  practice,  now  nearly  two  hundred  years,  it  has 
been  held  to  be  an  established  principle  of  parliamentary  law,  ap- 
plicable alilce  to  all  committees,  that,  possessing  only  a  delegated 
power  themselves,  they  cannot  delegate  it  even  to  their  own  mem- 
bers as  a  subcommittee.'^  A  committee  of  the  w^hole  may,  how- 
ever, by  way  of  report,  direct  their  chairman  to  move  the  house  for 
the  appointment  of  a  select  committee,  with  such  powers  as  may 
be  deemed  necessary  to  take  a  particular  subject  into  consider- 
ation.^ 


Section  III.     JVIaking  Motions,  and  Speaking  in  Committee  of 

THE  Whole. 

2000.  It  is  a  rule,  practically  observed  in  committees  of  the 
whole,  that  a  motion  need  not  be  seconded  ;  but  this  rule  has  never 
been  distinctly  declared  or  recognized,  as  such;  the  propriety  of  it 
is  sometimes  questioned ;  and  it  is  quite  certain,  that  there  is  as 
much  reason  for  requiring  a  motion  to  l5e  seconded  when  made  in 
committee,  as  when  made  in  the  house.*^     It  is  the  custom,  how^ 

1  M:iv,  289.  *  Hans.  (1),  XXXIX.  770,  777. 

a  May.  296;  Hans.  (3),  XXXIV.  656;    Hat-  M'arl.  Reg.  XLII.  81.    See  ulso  Hans.  (1), 

sell,  II.  270,  271,  note;  Comm.  Deb.  VI.  161.  XH.  051.     See  also  Lloyd's  Deb.  131;  Ann.  of 

See  also  J.  of  H.  24th  Cong.  1st  Sess.  1209;  Cong.  I.  122;  Cong.  Globe,  XV.  32. 

Cong.  Globe,  III.  484.  •  Hatsell,  IL  112,  not(. 

8  Rushworth,  IV.  19. 

65* 


774  LEGISLATI'^T';    ASSEMBLIES.  [PaRT    VIL 

ever,  as  before  remarked,  to  put  a  question  on  the  motion  of  a  sin- 
gle member.^  It  may  be  mentioned  here  that  there  can  be  no 
motion  made  in  committees  of  the  whole  to  lie  on  the  table,^  or  to 
postpone  indefinitely,  or  to  a  day  certain.  The  only  postponement 
that  can  take  place  is,  to  transpose  the  order  of  considering  by  par- 
agraphs.'^ Neither  can  a  committee  of  ihe  whole  entertain  any 
matter  of  privilege,*  or  order  any  questions  pending  therein  to  be 
taken  by  yeas  and  nays.^  Nor  is  it  competent  for  a  committee  of 
the  whole  to  reconsider  a  vote.*'  This,  like  the  same  principle  in 
regard  to  select  committees,  stands  upon  a  somewhat  narrow  inter- 
pretation of  a  common  principle  of  parliamentary  law. 

2001.  In  committees  of  the  whole,  the  rule  that  no  member  shall 
speak  more  than  once  to  the  same  question,  does  not  hold ;  every 
member  may,  therefore,  if  he  can  obtain  the  floor,  speak  as  many 
times  as  he  thinks  proper,  or  as  may  be  necessary,  fuUy  to  explain 
his  views  in  reference  to  the  topic  under  consideration ;  and  this 
constitutes  the  main  difference  between  the  proceedings  of  a  com- 
mittee and  those  of  the  house.  It  is  by  means  of  this  fiicility  of 
speaking  that  the  details  of  a  bill,  or  other  measure,  are  subjected 
to  the  most  minute  and  thorough  examination,  at  the  least  expense 
of  time  ;  for,  when  a  member  can  speak  only  once,  he  cannot  safely 
omit  any  argument  which  he  may  be  called  upon  to  present  under 
any  circumstances ;  but  when  he  is  at  liberty  to  speak  as  many 
times  as  he  pleases,  he  may  confine  his  remarks  to  such  points  only 
as  arise  or  are  suggested,  without  taking  up  any  time  with  those  in 
reference  to  which  no  question  is  made.' 

2002.  In  regard  to  the  personal  deportment  of  members,  whether 
addressing  the  committee,  or  otherwise,  while  the  house  is  in  com- 
mittee, —  as,  for  example,  the  manner  and  place  of  speaking,  ad- 
dressing the  chair,  observing  silence,  etc.,  —  the  same  rules  prevail 
as  in  the  house. 

2003.  It  is  an  ancient  order  of  the  house  of  commons,  "  that 
where  there  comes  a  question  between  the  greater  or  lesser  sum,  or 
the  longer  and  shorter  time,  the  least  sum  and  the  longest  time 
ought  first  to  be  put  to  the  .question."  This  rule  is  more  peculiarly 
apphcable  to  the  committees  of  supply  and  of  ways  and  means; 
but  is  generally  observed  in  committees  upon  bills,  and  other  com- 
mittees of  the  whole  house.     It  creates  an  exception  to  the  general 

»  May,  288.     See  Pari.  Reg.  XII.  354,  357,  <  Cong.  Globe,  XXI.  1425. 

359,  363.  6  Cong.  Globe,  XIII.  618;  Same,  VIII.  285. 

«  Cong.  Globe,  XXIII.  645.  «  Cong.  Globe,  VI.  423;  Same,  X.  305. 

»  Cong.  Globe,  Vlll.  285 ;  Same,  IV.  203.  '  May,  2fc9. 


Chap.  VI.]    proceedings  in  committee  of  the  whole.  775 

rule,  by  which  it  is  the  duty  of  the  chairman  to  put  the  question 
upon  each  motion  separately,  and  in  the  order  in  which  th(;y  are 
moved ;  and  makes  it  his  duty  in  the  cases  referred  to,  whichever 
sum  or  time  may  be  first  moved,  to  put  the  smaller  sum  or  the 
longer  time  first  to  the  question.  The  rule  evidently  had  its  origin 
in  that  period  of  parliamentary  history,  when  it  was  the  practice 
for  the  question  to  be  taken  by  the  speaker,  or  framed  by  him,  from 
the  turn  of  the  debate,  rather  than  from  the  motion  of  any  particu- 
lar memlicr;  and  it  was  doubtless  intended  to  control  the  speaker, 
in  the  exercise  of  his  discretion,  as  to  the  question  to  be  proposed, 
so  as  to  secure  to  the  house  the  freest  exercise  of  its  consiitutional 
power,  in  regard  to  the  burdens  to  be  imposed  upon  the  people; 
the  object  of  the  rule  being,  "  that  the  charge  upon  the  people  may 
be  made  as  easy  as  possible."  ^  Though  the  purpose  of  the  rule 
has  therefore  ceased,  the  practice  has  been  found  to  be  convenient ; 
inasmuch  as  it  sometimes  enables  the  committee  to  dispose  of  two 
or  more  propositions,  by  the  taking  of  one  question;  as,  if  the 
smaller  sum  is  resolved  in  the  affirmative,  the  point  is  settled  at 
once,  and  no  question  is  put  upon  the  greater ;  and,  if  in  the  nega- 
tive, the  greater  sum  is  generally  agreed  to  without  further  opposi- 
tion. In  this  manner  a  direct  negative  of  the  larger  sum  is  avoided, 
when  the  majority  of  the  committee  are  averse  to  it ;  and  it  has 
been  assigned  as  one  of  the  merits  of  the  rule,  that  the  discourtesy 
of  refusing  to  grant  a  sum  demanded  by  the  crown  is  thereby  miti- 
gated. The  reason  of  the  first  part  of  the  rule,  namely,  as  to  tlie 
sum,  is  obvious.  The  reason  of  the  other  part,  as  to  the  time,  re- 
quiring the  longest  time  to  be  fii'st  put,  had  reference  to  the  ancient 
mode  of  granting  subsidies,  which  were  rendered  a  lighter  burden 
on  the  subject,  by  being  extended  over  a  longer  period.  The  pres- 
ent system  of  grants  does  not  admit  of  the  application  of  this  part 
of  the  rule ;  but  its  principle  is  still  regarded  in  the  com.mittee  of 

1  Mr.  May  remarks,  upon  the  reason  given  The  speaker  usually,  if  not  always,  belonged 

for  the  rule,  that  "how  that  desirable  result  to  the  court  party;  and  having  the  right,  in 

can  be  secured  by  putting  one  question  before  virtue  of  his  office,  to  present  which  question 

the  other,  is  not  very  apparent;  for  if  the  ma-  he  pleiised  out  of  several  before  the  house  at 

jovity  were  in  favor  of  the  smaller  sum,  they  the  same  time,  he  would  always  of  course  put 

would  negative  the  greater  when  proposed."  that  which  was  most  favorable  to  the  sover- 

(May,  421.)    Rut  it  seems  very  clear,  taking  eign  ;    and    the    members,  many    of    them, 

into  consideration  the  period  when  the  rule  might  not  dare,  or  at  any  rate,  might  be  very 

was  introduced,  in  connection  with  the  prac-  unwilling,  to  vote   against    the   larger   sum, 

tice  to  which  it  evidently  refers,  that  it  lies  at  when  distinctly  proposed  as  a  question  by  the 

the    fotmdation   of   the    great    constitutional  speaker,  who  would  nevertheless  avail  tliem- 

right   of  the   commons   to   be   the  exclusive  selves  of  the  privilege  afforded  them  by  the 

jucige  both  of  the  amount  and  of  the  time  of  forms  of  parliament,  to  negative  the  larger  by 

jayineut  of  every  tax  which  they  granted,  voting  for  the  lesser  sum. 


/ 


776  LEGISLATIVE   ASSEMBLIES.  [PaRT  VII. 

ways  and  means,  whenever  the  time,  at  which  a  tax  shall  com- 
mence, is  under  discussion ;  for  the  most  distant  time  being  most 
favorable  to  the  people,  the  question  for  that  time  is  first  put  from 
the  chair.i 


Section  IV.    Formal  Motions. 

2004.  A  coramitfee  of  the  whole,  having  no  power,  as  such, 
either  to  adjom-n  its  own  sittings,  or  to  adjourn  a  debate  to  a  future 
day,  but  only  to  rise  and  terminate  its  sitting,  on  the  same  day,  cer- 
tain formal  motions,  different  from  any  that  take  place  in  the  house, 
are  made  use  of  for  the  pm-pose  of  disposing  of  the  business  before 
the  committee. 

2005.  If  the  matter  referred  to  the  committee  is  of  such  a  nature 
that  it  does  not  admit  of  being  reported  upon  in  parts,  and  the 
committee  has  not  concluded  the  consideration  of  it,  at  the  usual 
time  for  the  adjournment  of  the  house,  the  proper  course  is,  for  the 
committee,  on  motion,  to  direct  the  chairman  "  to  report  progress, 
and  ask  leave  to  sit  again."  This  is  followed  by  a  motion  "  that 
the  chairman  do  now  leave  the  chair ; "  which  being  carried,  the 
chau-man  leaves  the  chair, —  the  house  is  resumed,  —  and  the  chair- 
man makes  the  report  as  directed  by  the  committee.  The  former 
motion,  being  equivalent  to  a  motion  for  an  adjournment  of  the 
debate,  in  the  house,  supersedes  whatever  motion  may  be  pending 
at  the  time,  except  a  motion  that  the  chairman  do  now  leave  the 
chair ;  which,  being  equivalent  to  a  motion  to  adjourn,  in  the 
house,  supersedes  aU  others.  The  debate,  however,  on  the  question 
pending,  continues  as  before  ;  ^  precisely,  as  in  the  house,  the  debate 
continues  on  the  main  question,  after  a  motion  made  to  adjourn,  or 
to  adjourn  the  debate. 

2006.  When  the  committee  has  gone  through  with  the  business 
referred  to  it,  the  proper  course  is,  for  the  committee,  on  motion,  to 
direct  the  chairman  to  report  the  resolutions  or  other  proceedings  to 
the  house,  and  then  to  direct  the  chairman  to  leave  the  chair. 

2007.  If  the  business  of  the  committee  is  such  as  to  admit  of 
being  reported  upon,  from  time  to  time,  in  part,  —  which  is  usually 
the  case  with  the  committees  of  supply  and  of  ways  and  means, — 
the  proper  course  is  for  the  committee,  on  motion,  to  direct  the 

1  Maj',  358,  421.     There  is  generally  a  rule,      gives  precedenoo  to  the  largest,  instead  of  tho 
in  our  assemblies,  concerning  the  filling  of     least  sum. 
t>lanks,  similar  to  the  above;  but  it  usually         ^  See  also  ante,  §  2002. 


Chap.  VL]   proceedings  in  committee  of  the  whole.  777 

shairnian  to  report  the  resolutions,  or  other  proceedings  of  the  com- 
mittee, if  there  are  any  to  report,  at  the  end  of  each  sitting,  and,  at 
the  same  lime,  to  ask  leave  for  the  committee  to  sit  again. 

2008.  If  Ihe  committee  wish  to  dispose  of  the  business  referred 
to  it,  by  proceeding  no  further  in  the  matter,  a  motion  may  be 
made,  "that  the  cliairman  do  now  leave  the  chair;"  m  hich,  if  car- 
ried, prevents  the  making  of  any  report,  and  supersedes  the  busi- 
ness of  the  committee,  as  an  adjournment  of  the  house  supersedes 
a  question  pending.^  This  course  of  proceeding,  though  not  regu- 
lar, is  not  unfrequently  resorted  to,  under  the  peculiar  circumstances 
of  a  case,  a*s  the  most  convenient  mode  of  disposing  of  the  matter. 
In  this  case,  however,  the  order  of  reference  still  remains  a  subsist- 
ing order,  and  the  house  may  at  any  time  be  again  resolved  into 
the  committee. 

2009.  It  is  a  rule,  in  committee,  that  motions  to  report  progress, 
and  that  the  chairman  do  leave  the  chair,  being  of  the  nature  of 
motions  to  adjourn  the  debate  and  to  adjourn  the  house,  if  nega- 
tived, cannot  be  immediately  renewed,  but  only  after  the  interven- 
tion of  some  other  proceeding."'^  Hence,  it  is  usual,  when  the  house 
is  in  committee,  to  move  alternately,  "  that  the  chairman  do  report 
progress,"  and  "  that  the  chairman  do  now  leave  the  chaiy,"  for  the 
same  purpose  that  motions  to  adjourn  the  house,  and  to  adjourn 
the  debate,  are  alternately  made  in  the  house. 

2010.  It  has  been  stated,  that  when  a  comirdttee  has  directed 
its  chairman  to  report,  either  a  progress,  in  the  matter  referred  to  it, 
or  the  resolution  or  other  proceedings  of  the  committee,  a  motion 
then  follows,  that  the  chairman  do  now  leave  the  chair.  The  inter- 
val between  these  two  motions  is  the  proper  time  for  instructing 
the  chairman,  if  necessary,  to  report  to  the  house  any  disturbance, 
or  extraordinary  occurrence,  which  may  have  happened  in  the  com- 
mittee, which  has  not  already  been  reported,  and  which  may  be 
thought  of  importance  enough  to  be  reported  to  the  house.^ 

1  May,  293;  Cong.  Globe,  XI.  341.  «  Hans.  (2),  X.  318,  319. 

»  Cong.  Globe,  VI.  371. 


778  LEGISLATIVE    ASSEMBLIES.  [PaRT   VIL 


CHAPTER    SEVENTH. 

OF  THE  REPORTS   OF    COMMITTEES   OF  THE  WHOLE. 

2011.  The  reports  of  committees  of  the  whole,  made  to  the 
house,  are  usually  in  the  form  of  resolutions,  expressive  of  the 
opinion  of  the  committee,  as  to  the  subject  referred  to  it ;  some- 
times, however,  they  are  in  the  form  of  a  dkection  from  the  com- 
mittee to  its  chairman,  to  inform  the  house  of  some  fact,  or  to  make 
a  particular  motion;  and,  sometimes,  as,  for  example,  when  the 
committee  reports  resolutions,  and,  at  the  same  time,  directs  the 
chairman  to  move  for  leave  to  sit  again,  both  these  forms  are 
combined. 

2012.  In  respect  to  their  substance,  also,  reports  are  of  two 
kinds,  namely,  those  which  relate  to  some  occasional  or  incidental 
matter,  occm-ring  in  the  course  of  a  committee's  proceedings,  and 
those  which  relate  to  the  subject-matter  referred  to  the  committee. 

2013.  Reports  of  committees  of  the  whole  differ  from  those  of 
select  committees,  in  one  important  particular,  as  to  their  sub- 
stance, namely,  that,  in  all  cases,  where  the  subject  of  reference  to 
a  committee  involves  an  investigation  of  facts,  as  well  as  the  ex- 
pression of  an  opinion,  it  is  the  duty  of  a  select  committee  to  report 
the  evidence  or  facts,  which  they  find,  as  well  as  the  resolutions  of 
opinion,  to  which  they  have  agreed  upon  the  facts ;  ^  but,  when  such 
an  investigation  is  carried  on  by  a  committee  of  the  whole,  the 
committee  simply  reports  resolutions;  inasmuch,  as  it  would  be 
the  merest  pedantry  of  form  to  say,  that  the  members  of  the  house 
could  not  know  in  that  capacity  facts  which  had  come  to  their 
knowledge  sitting  as  a  committee. 

Section  I.    Resolutions. 

2014.  A  committee  of  the  whole  usually  reports,  in  reference  to 
the  subject-matter  referred  to  it,  in  the  form  of  resolutions,  which 
receive  the  consideration  of  the  house,  and  are  agreed  to  or  disa- 
greed to,  in  the  same  manner  as  resolutions  reported  by  a  select 
committee,  or  moved  by  an  individual  member, 

1  Pari.  Reg.  XI.  488. 


Chap.  VII.]    reports  of  committees  of  the  whole.  779 


Section  II.    Direction  to  move  the  House  or  to  state  a  Fact. 

2015.  This  form  of  report  is  adopted  when  the  committee  is  of 
opinion,  that  the  object  can  be  most  conveniently,  and  may  with 
projM-iety,  be  accomplished  in  that  manner.  When  the  chairman  is 
thus  directed  to  make  a  motion,  he  reports  accordingly  and  makes 
the  motion,  as  directed  by  the  committee.  The  motion  is  then 
treated  in  the  same  manner,  as  a  motion  emanating  from  an  indi- 
vidual member  It  also  requires  notice  to  be  given  in  the  same 
manner.! 

2016.  When  the  chairman  is  merely  directed  to  make  a  state- 
ment to  the  house  of  some  fact,  without  submitting  any  motion, 
the  duty  of  the  chairman  is  discharged  by  the  simple  statement  as 
directed ;  this  being  done,  it  is  for  the  house,  on  motion  of  the 
members  individually,  to  take  such  measures  in  reference  to  the 
matter  of  the  statement  as  may  be  deemed  necessary  and  proper. 


Section  III.  -  Special  Reports. 

2017.  Whenever  any  thing  occurs,  in  the  course  of  the  proceed- 
infifs  of  a  committee,  which  makes  the  immediate  intervention  of 
the  house  necessary  or  desirable,  the  proper  course  is  for  the  com- 
mittee to  rise  and  report  that  matter  to  the  house.  Such  proceed- 
ings take  place  thereupon  as  may  be  deemed  necessary,  and  then 
the  house  resolves  again  into  the  committee.  If  the  matter  is  one 
which  does  not  require  or  admit  of  the  immediate  interference  of 
the  house,  the  committee  makes  a  report  upon  it  at  the  same  time, 
with  the  report  on  the  matter  referred. 

2018.  Occasions  of  this  kind  occur  w^hen  a  witness  refuses  to 
attend,  or  to  testify,  or  prevaricates,  or  when  a  witness  is  tampered 
with,  while  in  attendance  upon  the  committee ;  or  where  any  ques- 
tion arises  in  the  conjmittee,  as  to  the  form  of  proceeding,  which 
ought  to  be  adopted  ;  or  where  it  becomes  desirable  to  enlarge  the 
powers  of  the  committee  by  further  instructions.  Li  these  cases, 
the  report  may  be  in  such  form  as  may  be  deemed  most  conven- 
ient ;  though,  in  the  last-mentioned  case,  it  is  usual  merely  for  the 
committee  to  report  progress,  —  then,  on  motion,  to  receive  the 
necessary  instruction,  —  and  then  for  the  house  to  resolve  itself 

»  See  ante,  1947. 


I 

780  LEGISLATIVE    ASSEMBLIES.  [PaRT   VIL 

again  into  the  committee.     Reports  of  this  kind  are  usually  received 
at  the  time  and  taken  into  consideration  immediately. 

2019.  It  seems,  that  if  a  breach  of  privilege  occurs,  while  the 
house  is  in  a  committee,  it  cannot  be  decided  upon  by  the  commit- 
tee, but  the  house  must  be  resumed,  and  all  other  matter  suspended, 
until  the  question  of  privilege  is  settled.^ 

Section"  IV.    Report  on  the  Subject- Matter  referred  to  the 

Committee. 

2020.  When  the  committee  has  gone  through  with  the  consid- 
eration of  the  subject  referred  to  it,  and  has  agreed  upon  the  result, 
its  report  is  usually  presented  to  the  house,  in  the  form  of  resolu- 
tions, expressive  of  the  opinion  of  the  committee,  as  to  the  sub- 
ject-matter referred  to  it,  or  as  to  the  proper  course  to  be  taken  in 
the  house  with  reference  to  such  subject.  Sometimes,  however, 
the  report  is  in  the  form  of  a  direction  to  the  chau-man  to  move 
the  house,  that  leave  be  granted  for  a  bill  to  be  brought  in,  or  that 
a  select  committee  be  appointed  for  a  particular  purpose. 


CHAPTER    EIGHTH. 

OF  MAKING  THE  REPORT,  AND  PROCEEDINGS  THEREON. 

2021.  The  form  of  reporting  from  a  committee  of  the  whole,  in 
the  house  of  commons,  is  as  follows.  The  committee  having  first 
agreed  upon  a  report,  the  chairman  is  directed  to  leave  the  chair. 
On  this,  the  chairman  leaves  the  chair,  the  speaker  takes  the 
chair  of  the  house,  and  the  chairman,  addi*essing  himself  to  the 
speaker,  from  his  place  in  the  house  (for  the  purpose  of  making  the 
report,  the  chairman  usually  takes  a  position  near  the  steps  of  the 
speaker's  chair)  informs  the  house,  that  the  committee  of  the  whole, 
to  whom  such  a  subject  was  referred,  having  considered  the  same, 
has  directed  him  to  make  a  report  thereon,  at  such  time  as  the 
house  shaU  see  fit  to  receive  it.     The  house  then,  on  motion,  or- 

i  Pari.  Reg.  XI.  188. 


Chap.  IX.]       pakticular  committees  of  the  whole.  781 

ders  that  the  report  be  immediately  received,  in  which  case,  he 
makes  the  report  in  his  place,  or  near  the  chair,  or  that  it  be  re- 
ceived on  some  future  day  named. 

2022.  At  the  time  appointed  for  receiving  the  report,  (the  order 
of  the  day  for  receiving  it  being  first  read,  if  a  future  day  has  been 
appointed,)  the  chairman  appears  with  it  at  the  bar  of  the  house, 
and,  upon  being  called  to  by  the  speaker,  states  that  he  has  such  a 
report.  A  motion  is  then  made,  or  supposed  to  be  made,  and  a 
question  put,  that  the  report  be  now  brought  up.  This  motion 
may  be  decided  in  the  negative,  in  which  case,  it  is  competent  to 
the  house,  to  fix  upon  another  time,  either  within  or  beyond  the 
session,  for  receiving  the  report,  or  to  let  the  matter  drop  without 
any  further  proceeding,  or  to  recommit  the  report  to  the  commit- 
tee. The  motion  may  be  amended,  by  lea\dng  out  "now  "  and  in- 
serting some  other  day,  either  within  or  beyond  the  session,  and 
agreed  to  in  that  form ;  or  it  may  be  simply  agreed  to,  in  which 
case,  the  report  is  brought  up  to  the  table.  When  the  report  is 
brought  up,  a  motion  is  made  or  supposed  to  be  made,  and  a  ques- 
tion put,  for  the  reading  of  the  report.  If  the  report  consists  of 
resolutions,  they  are  then  to  be  proceeded  with,  —  that  is,  read 
and  considered,  —  in  the  usual  manner  ;  if  it  is  in  any  other  form, 
such  proceedings  then  take  place,  as  the  nature  of  the  subject  re- 
quires.^   , 


CHAPTER    NINTH. 

OF  SOME  PARTICULAR  COMMITTEES. 

2023.  Committees  of  the  whole  owe  their  origin  to  the  grand 
committees,  as  they  were  called,  which  played  so  important  a  part 
in  parliamentary  proceedings,  during  the  reigns  of  James  I.  and 
Charles  L,  and  which  were,  in  fact,  standing  committees  of  the 
whole  house.  These  committees  generally  sat,  like  the  select  com- 
mittees of  more  modern  times,  in  the  afternoons,  after  the  adjourn- 

*  It  is  scarcely  necessary  to  add,  that  in  place  in  the  house.     The  form  of  a  report 

our  practice,  the  ceremony  of  making  the  upon  a  bill,  as  well  as  the  proceedmgs  upon 

report  from  the  bar  is  in  all  cases  dispensed  such  report,  will  be  stated  in  the  next  part  ■ 
with,  and  that  the  chairman  reports  from  his 

66 


I 
782  LEGTSLATIYE   ASSEMBLIES.  [PaRT  VII 

ment  of  the  house,  and  at  other  times  when  the  house  was  not  in 
session.  Sometimes,  however,  the  house,  while  sitting,  was  turned 
into  a  grand  committee,  for  a  particular  purpose ;  and  this  pro- 
ceeding seems  to  have  given  rise  to  committees  of  the  whole  as 
they  are  now  constituted. 

2024.  These  grand  committees,  from  the  character  of  the  sub- 
jects, which  they  were  appointed  to  investigate,  came  at  length  to 
be  denominated  the  grand  committees  for  religion,  trade,  courts  of 
justice,  and  grievances.  They  were  appointed  at  the  commence- 
ment of  each  session,  and  were  directed  by  the  house  to  sit  on  cer- 
tain days,  in  each  week,  during  the  session.  But,  in  fact,  these 
committees,  though  regularly  appointed,  existed  only  in  name  from 
the  time  of  the  Restoration,  —  never  having  been  called  upon  to  sit 
for  the  consideration  of  any  matter  refen-ed  to  them,  from  that 
time,  —  and  they  were  wholly  laid  aside  in  1832,  at  the  beginning 
of  the  first  session  of  the  reformed  parliament. 

2025.  The  ancient  committee  of  privileges  is  also  analogous  to 
a  gi-and  committee,  consisting  of  certain  members,  specially  nom- 
inated, of  aU  knights  of  shires,  gentlemen  of  the  long  robe,  and  mer- 
chants in  the  house ;  and,  "  aU,  who  come  are  to  have  voices." 
This  committee  is  not  appointed  to  sit,  unless  there  is  some  special 
matter  to  be  referred  to  it,  as  was  the  case  in  1847.^ 

2026.  The  only  committees  of  the  whole  house,  which,  in 
modern  times,  possess  the  character  of  permanent  or  standing 
committees,  are  the  committees  of  supply  and  of  ways  and  means. 
These  committees  are  the  parliamentary  machinery,  by  means  of 
which  the  house  of  commons  chiefly  exercises  its  political  or  con- 
stitulional  functions.  In  order  to  make  their  proceedings  intelligi- 
ble, it  will  be  necessary  to  state  very  briefly,  the  constitutional 
functions  of  the  several  branches  of  the  legislature. 

2027.  The  crown,  acting  with  the  advice  of  its  responsible  min- 
isters, being  the  executive  power,  Is  charged  with  the  management 
of  all  the  revenues  of  the  State,  and  with  all  payments  for  the 
public  service.  The  crown,  therefore,  in  the  first  instance,  makes 
known  to  the  commons  the  pecuniary  necessities  of  the  govern- 
ment, and  the  commons  grant  such  aids  or  supphes  as  are  required 
to  satisfy  those  demands ;  and  provide  by  taxes,  and  by  the  ap- 
propriation of  other  sources  of  the  public  income,  the  ways  and 
means  to  meet  the  supplies  granted  by  them.  Thus,  the  crown 
demands  money,  the  commons  grant  it,  and  the  lords  assent  to  the 

.  *  Comm.  Jour.  CIII.  139,  Wtsl  Gloucester  Election. 


CnAP.  IX.]        PAKTICULAR    COMMITTEES    OF    THE   WHOLE.  783 

grant.  But  the  commons  do  not  vote  money,  unless  it  is  required 
by  the  crown ;  nor  impose  or  augment  taxes,  unless  they  are  neces- 
sary for  meeting  the  supplies  which  they  have  voted,  or  are  about 
to  vote,  or  for  supplying  general  deficiencies  in  the  revenue.  The 
crown  has  no  concern  in  the  nature  or  distribution  of  the  taxes; 
but  the  foundation  of  all  parliamentary  taxation  is  its  necessity  for 
the  public  service,  as  declared  by  the  crown  and  its  constitutional 
advisers. 

2028.  In  addition  to  the  necessity  of  a  recommendation  from 
the  crown,  prior  to  a  vote  of  money,  the  house  of  commons  has 
interposed  another  obstacle  to  hasty  and  inconsiderate  votes,  which 
involve  any  public  expenditure,  by  a  resolution  of  the  18th  Febru- 
ary, 1667,  and  now^  made  a  standing  order,  "  That  if  any  motion 
be  made  in  the  house  for  any  public  aid  or  charge  upon  the  people, 
the  consideration  and  debate  thereof  ought  not  presently  to  be  en- 
tered upon,  but  adjourned  till  such  further  day  as  the  house  shall 
think  fit  to  appoint ;  and  then  it  ought  to  be  referred  to  the  com- 
mittee of  the  whole  house,  and  their  opinions  to  be  reported  there- 
upon, before  any  resolution  or  vote  of  the  house  do  pass  therein."  ^ 
A  similar  rule  was  made  a  standing  order,  on  the  29lh  March, 
1707,  namely :  "  That  this  house  will  not  proceed  upon  any  peti- 
tion, motion,  or  bill,  for  granting  any  money,  or  for  releasing  or 
compounding  any  sum  of  money  owing  to  the  crown,  but  in  a 
committee  of  the  whole  house."  ^ 

2029.  In  compliance  with  these  rules,  —  for  receiving  recom- 
mendations from  the  crown  for  the  grant  of  money;  —  for  defer- 
ring the  consideration  of  motions  for  supply  until  another  day;  — 
and  for  referring  them  to  a  committee  of  the  whole  house ;  —  the 
proceedings  of  parliament,  in  the  annual  grants  of  money  for  the 
public  service,  are  conducted  in  the  manner  described  in  the  follow- 
ing paragraphs. 

2030.  On  the  opening  of  parliament,  the  king,  in  his  speech 
from  the  throne,  addresses  the  commons;  demands  the  annual  pro- 
vision for  the  public  services ;  and  acquaints  the  house  that  he  has 
directed  the  estimates  to  be  laid  before  them.  The  first  business  of 
the  commons,  on  returning  to  their  house,  is  to  consider  of  and 
agree  to  an  address,  in  answer  to  the  king's  speech;  and  this  being 
done,  tliey  order  the  speech  to  be  taken  into  consideration  on 
another  day.  When  that  day  arrives,  the  house  proceeds  to  take 
the  speech  into  consideration,  and  it  is  again  read  by  the  speaker 

»  Comm.  Jour.  IX.  52.  a  Comm.  Tour.  XV.  3G7. 


I 


* 


784  LEGISLATIVE   ASSEMBLIES.  [P.\RT  VII. 

A  motion  being  then  made  that  a  supply  be  granted  to  his  majesty 
the  house,  in  conformity  with  the  rule  above  mentioned,  resolves^ 
that,  on  some  future  day,  it  wiU  go  into  committee  to  consider  of 
that  motion.  On  the  day  appointed,  the  committee  sits,  the  royal 
speech  is  referred  to  it,  and  the  committee  agrees  to  a  resolution, 
"  that  a  supply  be  gi-anted  to  his  majesty ; "  which,  being  after- 
wards reported,  is  agreed  to  by  the  house. 

2031.  The  general  question  in  favor  of  a  supply  being  thus  de- 
termined, the  house  appoints  another  day,  on  which  it  will  resolve 
itself  into  a  committee  "  to  consider  of  the  supply  granted  to  his 
majesty,"  or,  as  it  is  commonly  called,  "  the  committee  of  supply." 
The  function  of  this  committee  being  to  consider  of  the  sums  of 
money  needed  for  carrying  on  the  government,  and  being  thus 
obliged  to  consider  the  estimate  of  the  expenses  of  the  different 
departments  of  the  government  for  the  current  year,  the  next  busi- 
ness of  the  house  is  to  order  those  estimates  to  be  laid  before  it, 
and  to  address  the  crown  to  give  directions  to  the  proper  officers 
for  that  purpose.  The  day  for  the  sitting  of  the  committee  is,  of 
course,  fLxed  with  reference  to  the  receiving  of  the  estimates,  or 
some  of  them,  in  the  mean  time. 

2032.  The  estimates  for  the  navy,  army,  and  ordnance  depart- 
ments, are  required  by  a  resolution  of  the  house  of  commons,  when- 
ever parliament  assembles  before  Christmas,  to  be  presented  before 
the  loth  January,  then  following,  if  parliament  is  then  sitting,  or 
within  ten  days  after  the  opening  of  the  committee  of  supply, 
when  parliament  does  not  assemble  tUl  after  Christmas.  The  esti- 
mates for  civil  services  are  usually  presented  somewhat  later  in  the 
session. 

2033.  When  the  estimates  have  been  presented,  printed,  and  cir- 
culated among  the  members,  the  sitting  of  the  committee  of  supply 
begins.  The  committee  does  not  go  through  with  the  entire  busi- 
ness referred  to  it,  namely,  "to  consider  of  the  supply  granted," 
before  reporting;  but  from  time  to  time  reports  such  resolutions  aa 
it  has  agreed  to,  and  at  the  same  time  directs  the  chairman  to 
move  for  leave  for  the  committee  to  sit  again ;  this  being  granted, 
and  the  time  fixed  for  the  next  sitting,  the  committee  is  thus  kept 
"  open,"  until  it  has  gone  through  with  its  whole  business. 

2034.  On  the  day  appointed  for  the  first  sitting  of  the  commit- 
tee, the  order  of  the  day  being  read  for  the  house  to  be  resolved 
into  the  committee,  the  estimates  and  accounts  then  received  are 
referred  to  the  committee,  and  the  house  resolves  itself  into  the 
t^mmittee,  in  the  manner  already  described.    In  the  committee,  the 


Chap.  IX.]      particular  committees  of  the  whole.  785 

member  of  the  administration  representing  the  department  for 
which  the  supplies  are  required,  after  explaining  to  the  committee 
such  matters  as  may  satisfy  them  of  the  correctness  and  propriety 
of  the  estimates,  then  proceeds  to  propose  each  grant  in  succession, 
of  a  sum  of  money  named,  for  the  object  specified  in  the  estimate. 
The  order  in  which  the  several  estimates  are  to  be  granted,  the 
members  by  whom  the  grants  are  to  be  proposed,  the  days  of  sit- 
ting of  the  committee,  and  the  days  assigned  for  receiving  its 
reports,  are  all  matters  the  regulation  of  which  is  conceded,  as 
a  matter  of  course,  to  those  members  who  represent  the  govern- 
ment. 

2035,  Wlien  the  first  report  of  the  committee  of  supply  has  been 
received  by  the  house,  and  the  resolutions  reported  agreed  to, 
namely,  that  certain  sums  be  grante^  to  his  majesty  for  the  objects 
specified  in  the  estimates  that  have  been  considered  by  the  com- 
mittee, a  day  is  then  appointed  for  the  house  to  resolve  itself  into  a 
committee  "  to  consider  of  ways  and  means  for  raising  the  supply 
granted ;  "  or,  as  it  is  briefly  denominated,  "  the  committee  of  ways 
and  means."  This  committee  reports  from  time  to  time,  like  the 
former,  and  is  kept  open  in  the  same  manner,  and  is  ordered  to  sit, 
by  the  house,  according  to  the  state  of  the  business  before  it,  and 
the  convenience  of  the  house. 

2036.  "  As  the  committees  of  supply  and  ways  and  means  con- 
tinue to  sit  during  the  session,  are  presided  over  by  the  same  chair- 
man, are  both  concerned  in  providing  money  for  the  public  service, 
and  are  governed  by  the  same  rules  and  usage,  it  will  be  necessary 
to  distinguish  their  peculiar  functions,  before  a  more  detailed  ac- 
count is  given  of  the  forms  of  procedure  which  apply  equally  to 
both.  The  general  resemblance  between  these  committees  has 
sometimes  caused  a  confusion  in  regard  to  the  proper  functions  of 
each  ;  but  the  terms  of  their  appointment  define  at  once  their  dis- 
tinctive duties.  The  committee  of  supply  considers  what  s]3ecific 
grants  of  money  shall  be  voted  as  supplies  demanded  by  the  crown 
for  the  service  of  the  current  year,  as  explained  by  the  estimates 
and  accounts  prepared  by  the  executive  government,  and  referred 
by  the  house  to  the  committee.  The  committee  of  ways  and 
means  determines  in  what  manner  the  necessary  funds  shall  be 
raised  to  meet  the  grants  which  are  voted  by  the  committee  of  sup- 
ply, and  which  are  required  for  the  public  sen*ice.  The  former 
committee  controls  the  public  expenditure ;  the  latter  provides  the 
public  income :    the  one  authorizes  the  payment  of   money,  the 

66* 


786  LEGISLATIVE  ASSEMBLIES.  [PaRT  VIL 

other  sanctions  the  imposition  of  taxes,  and  the  application  of  pub- 
lic revenues  not  otherwise  applicable  to  the  service  of  the  year."  ^ 

2037.  "  One  of  the  most  important  occasions  for  which  the  com- 
mittee of  ways  and  means  is  required  to  sit,  is  for  receiving  the 
financial  statement  for  the  year,  from  the  chancellor  of  the  ex- 
chequer.- Wlien  that  minister  has  had  sufficient  tune  to  calculate 
the  probable  income  and  expenditure  for  the  financial  year,  com- 
mencing on  the  5th  April,  he  is  prepared  to  determine  what  taxes 
should  be  repealed,  reduced,  continued,  or  augmented,  or  what  new 
taxes  must  be  imposed.  As  it  is  the  province  of  the  committee  of 
ways  and  means  to  originate  aU  taxes  for  the  service  of  the  year,  it 
is  in  that  committee  that  the  chancellor  of  the  exchequer  develops 
his  views  of  the  resources  of  the  country,  communicates  his  calcu- 
lations of  the  probable  income  and  expenditure,  and  declares 
whether  the  burdens  upon  the  people  are  to  be  increased  or  dimin- 
ished. This  statement  is  familiarly  known  as  "  the  budget,"  and  is 
regarded  with  greater  interest,  perhaps,  than  any  other  speech 
throughout  the  session.  The  chancellor  of  the  exchequer  concludes 
by  proposing  resolutions  for  the  adoption  of  the  committee  ;  which, 
when  afterwards  reported  to  the  house,  form  the  groundwork  of 
bills  for  accomplishing  the  financial  objects  proposed  by  the  minis- 
ter." ^ 

2038.  The  resolutions  of  the  committees  of  supply  and  ways 
and  means  are  reported  on  a  day  appointed  by  the  house,  but  not 
on  the  same  day  as  that  on  which  they  are  agreed  to  h^  the  com- 
mittee. When  the  report  is  received,  the  resolutions  are  twice  read 
and  agreed  to  by  the  house ;  or  may  be  disagreed  to,  amended, 
postponed,  or  recommitted.  K  agreed  to,  biUs  are  ordered  to  carry 
them  into  effect,  whenever  it  is  necessary.  This  is  the  course  pur- 
sued upon  resolutions  from  the  committee  of  ways  and  means  ;  but 
the  greater  part  of  the  resolutions  of  the  committee  of  supply  are 
reserved  for  the  Appropriation  Act,  at  the  end  of  the  session.  If 
it  is  proposed  to  amend  a  resolution  on  the  report,  the  amendment 
can  only  elTect  a  diminution  of  the  proposed  burden,  and  not  an 
increase.  K  the  latter  is  desired,  the  proper  course  is  to  recommit 
the  resolution ;  as  an  addition  to  the  public  burdens  can  only  be 
made  in  committee.* 

2039.  It  must  always  be  borne  in  mind,  that  the  house  can  en- 
tertain any  motion  for  diminishing  a  tax  or  charge  upon  the  people ; 

1  Jlay,  417.  '  May,  419. 

*  Or  sometimes  the  first  lord  of  the  treasury,  *  May,  422. 

if  a  member  of  the  house  of  commons. 


Chap.  IX.]      particular  committees  op  the  whole.  787 

and  bills  are  frequently  brought  in  for  that  purpose,  wnthout  the 
formality  of  a  committee.  Obstacles  are  opposed  to  the  imposition 
of  burdens,  but  not  to  their  removal  or  alleviation ;  and  this  dis- 
tinction has  an  influence  upon  many  proceedings  not  immediately 
connected  with  supply.  For  instance,  the  blanks  left  in  a  bill  for 
salaries,  tolls,  rates,  penalties,  etc.,  are  filled  up  in  committee  ;  but 
on  the  report,  the  house  may  reduce  their  amount.  If,  however,  it 
be  desired  to  increase  them,  the  bills  should  be  recommitted  for  that 
purpose.  So,  also,  if  a  clause  proposed  to  be  added  to  a  bill  enacts 
a  penalty,  which  the  house,  on  the  report  of  the  clause,  desire  to 
increase,  the  clause  ought  to  be  recommitted.^  Any  bounties, 
drawbacks,  or  allowances,  involving  payments  out  of  the  revenue, 
have  usually  been  proposed  in  committee ;  but  if  an  allowance 
were  merely  in  the  form  of  a  deduction  from  the  amount  of  a  pro- 
posed duty,  it  might  be  entertained  by  the  house."  ^ 

2040.  When  the  supplies  for  the  service  of  the  year  have  all 
been  granted,  the  committee  of  supply  discontinues  its  sittings,  but 
the  financial  arrangements  are  stUl  to  be  completed  by  votes  in  the 
committee  of  ways  and  means.  That  committee  authorizes  the 
application  of  money  from  the  consolidated  fund,  the  surplus  of 
ways  and  means,  and  sums  in  the  exchequer,  to  meet  the  several 
grants  and  services  of  the  year ;  and  a  bill  is  ordered  to  carry  their 
resolutions  into  effect.  This  is  known  originally  as  the  Consoli- 
dated Fund  Bill,  but  after  it  has  been  committed,  an  instruction  is 
given  by  the  house  to  the  committee,  to  receive  a  clause  of  appro- 
priation, and  it  is  then  called  in  the  votes  the  "  Consolidated  Fund 
(Appropriation)  Bill,"  but  more  generally  the  Appropriation  BiU. 
It  enumerates  every  grant  that  has  been  made  during  the  whole 
session,  and  authorizes  the  several  sums,  as  voted  by  the  committee 
of  supply,  to  be  issued  and  applied  to  each  separate  service."  ^ 

2041.  There  is  only  one  other  name,  of  a  general  character,  by 
which  a  committee  of  the  whole  has  been  known  in  modern  times, 
namely,  a  committee  on  the  state  of  the  nation ;  into  which  both 
houses  of  parliament,  on  extraordinary  occasions,  as  in  the  house  of 
commons,  during  the  war  in  1778,  and  in  both  houses,  during  the 
illness  of  George  III.,  have  resolved  themselves.  The  functions  of 
this  committee  are  thus  somewhat  sneeringly  described  by  Lord 
Chancellor  Loughborough,  in  his  speech  in  the  lords,  on  a  motion 
that  the  house  resolve  into  a  committee  to  take  into  consideration 


1  See  May,  361.  «  May,  425. 

»  May,  422. 


788  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII. 

the  state  of  the  nation :  "  The  only  eifect  of  entertaining  such  a 
motion  was  to  furnish  a  theatre  for  the  introduction  of  every  par- 
ticular topic  that  could  be  urged,  and  to  enable  the  mover  to  travel 
over  all  the  scenes  of  public  affairs,  past,  present,  and  to  come ;  to 
touch  upon  all  possible  subjects,  and  to  abstain  from  inquiry  upon 
every  one."  ^ 

2042.  Committees  of  the  whole  constitute  a  part  of  the  ordinary 
parliamentary  machinery,  in  all  our  legislative  assemblies,  in  which 
they  are  in  fi'equent  use,  though  for  the  most  part  only  occasionally, 
and  not  under  any  particular  name.  In  the  second  branch  of  con- 
gress they  are  provided  for  by  rule,  under  the  names  of  a  committee 
of  the  whole,  merely,  and  a  committee  of  the  whole  on  the  state'  of 
the  Union,  and  rules  established  for  going  into  them  to  the  exclu- 
sion of  other  business.  In  the  latter,  debate  is,  of  course,  unrestricted 
except  to  the  state  of  the  Union.  The  proceedings  in  the  commit- 
tees above  described,  of  supply,  and  of  ways  and  means,  have  been 
the  fruitful  precursors,  in  this  country,  of  constitutional  and  parlia- 
mentary provisions.  The  committee  of  ways  and  means  in  the 
house  of  representatives  of  the  United  States,  is  a  select  committee 
consisting  of  nine  members. 

»  Pari.  Reg.  LIX.  519. 


LAW  AND  PR  AC  lie  K 


OF 


LEGISLATIVE    ASSEMBLIES. 


PAET    SEVEl^TH. 

OF   COMMITTEES  AND  THEIR  FUNCTIONS. 


THIRD    DIVISION. 


JOINT    COMMITTEES. 


2043.  Besides  select  committees,  aYid  committees  of  the  whole, 
of  each  house,  there  are  joint  committees,  composed  of  members  of 
both  houses ;  for  the  appointment  of  which  concurrent  resolutions  of 
the  two  houses  are  necessary.  Committees  of  this  description  exist 
in  parliament  but  in  name  only ;  for  though  there  have  been  several 
instances  of  their  appointment,  in  former  years ;  yet,  for  the  last  cen- 
tury and  a  half,  no  such  committee  has  been  appointed.  "  A  rule 
similar  to  that  adopted  in  regard  to  conferences,  that  the  number  on 
the  part  of  the  commons  should  be  double  that  of  the  lords,  obtained 
in  the  constitution  of  joint  committees ;  and  was  inconsistent  with 
any  practical  union  of  the  members  of  the  two  houses,  in  deliberation 
and  voting.  The  principal  advantages  of  a  joint  committee  were 
that  the  witnesses  were  sworn  at  the  bar  of  the  house  of  lords,^  and 
that  one  inquiry,  common  to  both  houses,  could  be  conducted  pre- 
paratory to  any  decision  of  parliament.     But  the  power  possessed 

»  Comin.  Jour.  II.  502;  S:ime,  V.  647,  655. 

'769) 


790  LEGISLATIVE    ASSEMBLIES.  [PaRT  VII. 

by  the  commons  of  outvoting  the  lords  —  their  right  to  meet  their 
lordships  without  the  respectful  ceremonies  observed  at  confer 
encps,  and  then'  share  in  the  privilege  of  taking  the  evidence  of 
sworn  witnesses,  naturally  rendered  a  joint  committee  distasteful 
to  the  house  of  lords,  by  whom  no  power  or  facilities  were  gained 
in  return."  ^ 

2044.  A  modification  of  the  practice  of  appointing  joint  com- 
mittees may  be  effected  by  putting  committees  of  both  houses  in 
communication  with  each  other.  In  1794  the  commons  had  com- 
municated to  the  lords  certain  papers  which  had  been  laid  before 
them  by  the  king,  in  relation  to  corresponding  societies,  together 
vnih.  a  report  of  a  committee  of  secrecy ;  and  on  the  22d  May, 
1794,  the  lords  sent  a  message  to  acquaint  the  commons  that  they 
had  referred  the  papers  to  a  committee  of  secrecy,  and  had  "  given 
power  to  the  said  committee  to  receive  any  communication  which 
may  be  made  to  them  from  time  to  time  by  the  committee  of 
secrecy,  appointed  by  the  house  of  commons ; "  ^  to  which  the  com- 
mons replied,  that  they  had  given  power  to  their  committee  of 
secrecy  to  communicate,  from  time  to  time,  with  the  committee  of 
secrecy  appointed  by  the  lords.^  And  similar  proceedings  were 
adopted,  upon  the  inquiry  into  the  state  of  Ireland  in  1801,  which 
was  conducted  by  secret  committees  of  the  lords  and  commons 
communicating  with  each  other.'^ 

2045.  Besides  serving  in  the  manner  above  mentioned  as  a 
medium  of  communication  between  the  two  branches,  of  which  a 
legislative  body  is  composed,' joint  committees  seem  to  be  employed 
with  us  in  two  different  manners,  neither  of  which  has  any  thing 
corresponding  or  analogous  to  it  in  the  present  proceedings  of  par- 
liament. According  to  the  fii-st  of  these  methods,  a  committee  of 
each  branch  is  appointed  by  a  separate,  though  concurrent  vote  of 
each,  to  whom  the  same  subject  is  referred,  and  who  make  the 
same  report  in  both  branches.  These  committees  are  confined  for 
the  most  part  to  matters  of  form,  state,  and  ceremony,  and  are  not 
apphed  to  the  ordinary  business  of  legislation.  In  Massachusetts, 
and  in  some  others  of  the  Northern  States,  joint  committees,  con- 
sisting of  unequal  numbers  of  the  two  branches,  are  appointed  by 
a  concurrent  act ;  are  employed  about  the  ordinary  business  of  leg- 
islation ;  constitute  one  homogeneous  committee ;  and  make  their 
report  indifferently  in  either  branch.     These  committees,  as  to  their 

1  May,  328.  »  Comm.  Jour.  XLIX.  620. 

»  Comm.  Jour.  XLIX.  619.  *  Comm.  Jour.  LXVI.  287,  291;  May,  ?29. 


JOINT    COMMITTEES.  791 

form  and  authority,  and  modes  of  proceeding,  do  not  differ  from  the 
common  select  committees  of  a  single  branch,  except  that  every 
vote,  in  relation  to  them  and  their  proceedings,  must  be  concurrent. 
The  former  committees  are  very  sparingly,  the  latter  very  abun- 
dantly, used. 


LAW  AND   PRACTICE 


OF 


LEGISLATIVE   ASSEMBLIES. 


PAET    EIGHTH. 

OF  THE  PASSING  OF  BILLS. 

67  (7W> 


LAW    AND    PRACTICE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    EIGHTH. 

OF   THE   PASSING  OF   BILLS. 


HISTORY   OF  THE   PRESENT  FORM   OF   STATUTES,  AND  THE   MODE 

OF  PASSING   THEM. 

2046.  The  principal  and  most  important  business  of  a  legisla- 
tive, assembly  is  embraced  in  the  making  of  laws.  To  this  end, 
almost  all  its  other  functions  are  subsidiary,  and  almost  all  its  pro- 
ceedings directed.  In  order  to  the  making  of  a  law,  the  thi-ee 
branches  must  concur  in  the  same  proposition,  or  series  of  proposi- 
tions, embodied  in  a  particular  form  ;  which,  before  being  agreed 
to,  is  denominated  a  bill,  and,  afterwards,  becomes  an  act  or  stat- 
ute. The  proceedings,  which  relate  to  the  introduction  of  these 
propositions,  and  to  the  agreeing  upon  ihe  terms  in  which  they 
are  expressed,  are  collectively  denominated  the  passing  of  bills.^ 

2047.  In  order  to  the  passing  of  a  bill,  the  propositions  of  which 
it  is  composed,  reduced  to  writing  in  the  proper  form,  are  first 
introduced  and  agi'eed  to  in  one  house ;  the  bill  is  then  sent  to  the 
other  house,  where  it  is  considered  in  the  same  manner  as  in  the 

1  Where  a  legislative  body  consists  but  of  a  nre  known.  The  same  appellation  is  given  to 
single  brimph,  its  acts  are  usually  dciiom-  the  acts  of  inferior  legislatiye  bodies,  though 
inated  "  orilinances "  by  which  name  the  consisting  of  more  than  one  branch,  as,  for 
acts  of  the  old  congress  of  the  confederation     example,  to  the  acts  of  a  city  council. 

(795) 


I 
796  LEGISLATIVE   ASSEMBLIES.  [PaET  VIIL 

house  in  which  it  originated ;  and  there  it  may  be  either  agreed  to 
in  the  form  in  which  it  is  sent,  or  with  amendments  and  altera- 
tions, which  are  afterwards  assented  to  by  the  house  from  which  it 
emanates.  Being  agreed  to  in  both  branches,  it  is  then  presented 
to  the  king,  who  either  assents  to  or  rejects  it  altogether.  With 
one  or  two  unimportant  exceptions,  which  will  be  noticed  hereafter, 
bills  may  originate  indifferently  in  either  house ;  but,  with  a  single 
exception  only^,  wliich  will  also  be  noticed  in  another  place,  the 
crown  has  no  power  whatever  to  originate  bills. 

2048.  The  present  method  of  enacting  laws  in  parliament,  ac- 
cording to  which  the  terms  of  an  act  are  first  agreed  upon  by  the 
two  branches,  and  are  then  assented  to  or  rejected,  but  not  modi- 
fied, by  the  crown,  appears  to  have  been  finally  established  about 
the  close  of  the  reign  of  Henry  VI.  Previous  to  this  period,  though 
the  right  of  the  house  of  commons  to  participate  fully  and  equally 
with  the  king  and  lords  in  the  functions  of  legislation  had  been 
recognized,  the  commons  appear  only  in  the  capacity  of  petitioners, 
representing  the  people  of  England  in  the  statement  of  their  griev- 
ances, and  praying  for  relief.  To  the  petitions  of  the  commons, 
in  this  behalf,  answers  were  given  by  the  crown,  the  lords  and 
prelates  assenting,  granting  them  in  full,  or  only  partially,  or  ingraft- 
ing new  matter  upon  them,  or  rejecting  them  altogether,  according 
to  the  pleasure  of  the  sovereign.  The  petitions  and  answers  were 
then  entered  on  the  rolls  of  parUament,  not  in  any  technical  form  of 
language,  but  according  to  the  circumstances  of  each  case.  At  the 
end  of  each  parHament,  those  of  the  petitions  which  had  been  as- 
sented to  in  any  form,  together  with  the  answers,  were  digested  and 
drawn  out  by  the  judges  into  the  form  of  statutes,  which  were  en- 
tered on  the  statute  roll,  and  became  acts  of  parliament.^ 

2049.  This  form  of  proceeding,  which,  considering  the  illiterate 
character  of  the  age  when  it  commenced,  was  probably  the  best,  if 
not  the  only  mode,  in  which  the  commons  could  participate  in  the 
making  of  laws,  was  nevertheless  subject  to  inconvenience,  and 
liable  to  abuse.     The  crown  had  the  power,  by  giving  a  qualified 

1  Dwarris,   Part  I.  22-28.     It  is  rloubtless  of  parliament  concerning  tliat  matter,  as  also 

true  that  this  practice  was  attended  with  the  how   far  forth  former  statutes  had  provided  a 

advantage,  that  the  statutes   were  skilfully  remedy  for  former  mischiefs  and  defects  dis- 

prepared    by  competent  persons;    a   fact   to  covered  by  experience,  then  should  very  few 

which  Sir  Edward  Coke  in  the  preface  to  the  questions  in  law  arise,  and  the  learned  should 

first   part  of  his  reports,   alludes,  almost  in  not  so  often  and  so  much  perplex  their  heads 

terms  of  regret,  at  the  discontinuance  of  the  to  make  atonement  and  peace  by  construction 

practice.     "  If,"  says  he,  "  acts  of  parliament  of  law   between    insensible    and   disagreeing 

were  after  the  old  fashion   penned,  and   by  words,  sentences,  and  provisos,  as  they  now 

such  only  as  perfectly  knew  what  the  com-  do." 
mon  Law  was,  before  the  making  of  any  act 


PASSING   OF   BILLS.  797 

assent,  to  defeat  the  wishes  of  the  commons,  whilst  seeming  to 
grant  their  petitions.  It  was  also  difficult  for  the  judges,  even  wilh 
the  best  intentions,  to  digest  the  petitions  and  answers,  —  espe- 
cially after  the  lapse  of  some  time,  —  into  acts  really  expressive 
of  the  legislativ'e  will.  But,  above  all  this  method  afforded  an 
opportunity  to  corrupt  and  unprincipled  judges,  in  subservience  to 
the  crown,  to  falsify  the  record  which  they  were  intrusted  to  frame, 
by  additions  and  alterations,  which  rendered  the  act  materially 
different  from  the  petition  of  the  commons.^ 

2050.  In  order  to  guard  against  these  inconveniences,  it  was  pro- 
vided in  the  8th  of  Henry  IV.  at  the  request  of  the  commons,  that 
certain  of  the  comrrions'  house  should  be  present  at  the  engrossing 
of  the  parliament  rolls.  But,  it  does  not  appear,  that  the  evil  was 
remedied  by  this  precaution.  In  the  second  year  of  Henry  V.  the 
commons  again  represented,  that,  as  they  were  assentors  as  well  as 
petitioners,  statutes  should  be  made  according  to  the  tenor  of  the 
writing  of  their  petitions  and  not  altered,  to  which  the  king  as- 
sented. Subsequently,  during  this  reign,  and  doubtless  with  a 
view  to  prevent  a  continuance  or  repetition  of  the  mistakes  and 
abuses  alluded  to,  the  statutes  appear  to  have  been  drawn  up  by 
the  judges  before  the  end  of  the  parliament.  In  the  foUowing 
reign,  an  effectual  remedy  was  hit  upon  by  the  commons,  and  ap- 
plied, namely,  the  introduction  of  bills  in  the  full  and  complete 
form  of  acts  of  parhament,  according  to  the  modern  custom,  which 
were  passed  in  a  manner  approaching  that  of  the  present  day.- 

2051.  This  substitution  of  statutes,  complete  in  point  of  form, 
'II  the  place  of  the  old  petitions,  which  became  fully  estabhshed 
ai^out  the  end  of  the  reign  of  Henry  VI.  was  not  only  effectual  to 
remv?dy  the  evil  in  question,  but  also  had  the  effect  to  introduce  a 
new  and  most  important  principle  into  the  constitution,  namely, 
that  the  crown  had  power  only  to  approve  or  reject  altogether  the 
identical  propositions  agi*eed  to  by  the  lords  and  commons,  but  had 
no  power  to  alter,  amend,  or  qualify  them,  in  any  manner  whatso- 
ever.'^ It  is  worthy  of  remark,  that,  notwithstanding  this  change, 
the  form  of  a  petition  is  still  retained  in  acts  of  parliament. 

*  Dwarris,  Part  I.  29.  utcs,  that  laws  broujrlit  into  cither  lioii>e  of 
2  Dwarris,  I'art  L  30,  32,  33.  parliament  in  a  perfect  shape,  and  receiving 
'  "  Perhaps  the  triple  di%'ision  of  our  legis-  first  the  assent  of  lords  and  commons,  and 
lature  may  be  dated  from  this  innovation,  finally  that  of  the  kin<r,  who  has  no  power  to 
For,  as  it  is  impossible  to  deny,  that  while  the  modify  thorn,  must  be  deemed  to  proceed,  and 
king  promulgated  a  statute  founded  upon  a  derive  their  efficiency,  from  the  joint  concur- 
more  petition,  he  was  himself  the  real  legisla-  rence  of  nil  the  three."  Hallam,  Middle  Ages 
tor,  so  1  think  it  is  equally  fair  to  assert,  not-  H.  123,  note  3. 
withstiindiug  the  formal  preamble  of  our  stat- 

67* 


798  LEGISLATIVE    ASSEMBLIES.  [PaRT  VIII, 

2052.  In  Ihis  part,  which  is  devoted  to  the  manner  of  passing 
Dills,  it  will  only  be  necessary  to  consider  them  either  as  public  or 
private ;  all  bills  of  every  description  belonging  to  one  or  the  other 
of  these  two  classes,  so  far  as  relates  to  the  proceedings  by  which 
they  become  acts  or  laws.  In  addition  to  the  forms  and  proceed- 
ing?, which  are  applicable  to  bills  generally,  there  arc  some  which 
are  peculiar  to  private  bills,  and  which  make  it  necessary  to  con- 
sider them  separately.  The  subject  of  passing  bills  will  therefore 
be  treated  of  under  t'A^o  divisions:  —  in  ihe  Jirst  of  which,  every 
thing  relating  to  the  passing  of  biUs,  except  what  is  peculiar  to 
private  bills,  will  be  considered  ;  and,  in  the  second,  those  forms  and 
proceedings  which  are  peculiar  to  the  latter.  In  those  of  our  legis- 
lative assemblies,  in  which  there  are  any  differences  in  the  method 
of  proceeding  between  public  and  private  bills,  it  is  always  a  ques- 
tion of  order  merely,  for  the  presiding  officer  to  determine  whether 
a  given  bill  shall  proceed  as  a  public  or  private  one.^  These  dif- 
ferences, which  in  some  assemblies  do  not  exist  at  aU,  vary  much 
in  those  in  which  they  prevail,  and  are  all  probably  embodied  in 
the  highly  artificial  system  which  is  established  in  parliament,  and 
which  constitutes  the  second  division  of  this  part.  That  division 
has,  of  course,  no  other  authority  here  than  what  belongs  to  the 
principles  it  contains. 

»  Cong.  Globe,  XTL  183;  Same,  Xm.  636. 


LAW  AND  PRACTICE 


ov 


LEGISLATIVE    ASSEMBLIES. 


PART    EIGHTH. 

OF  THE  PASSING  OF  BILLS. 


FIRST  DIVISION. 

PUBLIC    BILLS. 

2053.  In  treating  of  the  passing  of  bills,  it  will  be  most  conven- 
ient to  pursue  the  order  of  the  proceedings  which  regularly  take 
place,  from  their  introduction  into  one  house,  until  they  receive  the 
royal  assent,  after  having  passed  through  the  other;  at  the  same 
time  taking  notice  of  those  proceedings  which  may  occur  out  of 
the  regular  course,  and  by  means  of  which  the  passing  of  a  bOl 
may  be  defeated.  Those  proceedings  which  may  take  place  here, 
on  the  approval  of  the  executive,  and  by  means  of  which  a  bill 
may  be  passed,  notwithstanding  the  objections  of  the  latter,  will  be 
noticed  under  the  head  of  Royal  Assent, 

2054.  Pursuing  this  order  in  the  arrangement  and  treatment  of 
the  several  subjects  embraced  in  the  passing  of  public  biEs,  this 
division  wdll  be  considered  in  the  following  chapters  :  —  I.  Prelim- 
inary ;  11.  Introduction  of  the  subject  of  a  bill  into  the  house ; 
III.  Intermediate  proceedings ;  IV.  Authority  for  the  introduction 
of  a  bUl ;  V.  Drawing  of  a  bill ;  VL  Presentation  and  reception 

(799) 


800  LEGISLATIVE  ASSEMBLIES.  [PaRT    VIII. 

of  a  bill ;  VII.  Different  stages  of  a  bill ;  VIII.  First  reading  and 
order  for  second  ;  IX.  Second  reading  and  order  for  commitment ; 
X.  Instructions  to  committees ;  XL  Commitment ;  proceedings 
in  committee ;  amendments ;  XII.  Report  of  committee  and  pro- 
ceedings thereon ;  XIII.  Engrossment  and  third  reading ;  XIV. 
Passing ;  XV.  Amendments  between  the  two  houses ;  XVI.  Au- 
thentication of  bills  between  the  two  houses ;  XVII.  Communi- 
cations between  the  two  houses  relative  to  the  passing  of  bills; 
XVIII.  Of  bills  which  are  required  to  be  commenced  in  one  house 
in  preference  to  the  other ;  XIX.  Of  the  rule  which  precludes  the 
same  question  from  being  twice  presented  during  the  same  session, 
in  its  application  to  bills  ;  XX.  Proceedings  with  reference  to  bills 
out  of  the  ordinary  course  of  passing ;  XXI.  Communications  be- 
tween the  tw^o  houses  relative  to  the  reasons  or  grounds  for  the 
passing  of  bills;  XXII.  Of  the  royal  assent  or  approval  by  the 
executive;  XXIII.  Of  several  miscellaneous  matters  connected 
with  the  passing  of  bills. 


CHAPTER  FIRST. 

INTRODUCTORY. 

2055.  A  bill,  as  has  already  been  stated,  is  a  proposition,  or 
series  of  propositions,  expressed  in  a  particular  form  of  words,  pur- 
porting to  be  an  authoritative  declaration  of  the  will  of  the  legis- 
lative power ;  and  which,  when  agreed  to  by  the  different  branches 
of  that  power,  becomes  a  law.  The  effecting  of  this  agi-eement  ia 
what  is  meant  by  the  passing  of  a  bill ;  and  the  form  in  which  the 
proceedings  are  conducted,  with  a  view  to-  this  end,  constitute  the 
system  or  method  of  passing  bills  in  a  legislative  assembly.  The 
great  purpose  of  all  these  forms  is  to  enable  the  assembly  to  ascer- 
tain what  its  will  is,  in  reference  to  a  given  topic  of  legislation, 
with  freedom,  intelligence,  and  deliberation ;  and,  when  ascertained, 
to  express  it  promptly  and  readily,  and  in  the  form  of  words  best 
adapted  to  the  pm-pose. 

2056.  In  considering  what  should  be  the  course  in  passing  a  biU, 
two  modes  of  proceeding  occur  to  the  mind,  either  of  which,  at  the 
first  view,  seems  calculated  to  effect  the  object.  Each  individual 
member  might  be  allowed  to  introduce  any  biU,  whether  of  a  public 


ClIAP.  L]  PUBLIC    BILLS.  801 

or  private  nature,  which  he  desh'cd  to  have  considered,  in  the  form 
which  he  thought  the  best,  and  the  most  likely  to  meet  the  appro- 
bation of  the  house.  This  mode,  however  adequate  it  might  be 
with  reference  to  a  bill  containing  but  a  single  proposition,  or  to 
one  of  extreme  simplicity  in  its  provisions,  would  clearly  be  attended 
with  inconvenience  in  the  case  of  a  bill  consisting  of  many  propo- 
sitions, complicated  in  its  structure,  and  comprising  a  number  of 
details ;  inasmuch  as  it  is  obvious  that  a  single  member,  or  a  few, 
acting  without  any  previous  communication  with  the  house,  would 
find  it  difficult,  if  not  impossible,  in  very  many  cases,  to  frame  a 
bill  of  thit  description,  so  as  to  be  acceptable,  both  as  to  matter 
and  as  to  form,  to  a  numerous  assembly.  The  other  mode  of  pro- 
ceeding alluded  to,  namely,  that  of  the  house  itself  framing  the  bill, 
would  be  attended  with  inconveniences  of  a  different  kind ;  such,  for 
example,  as  the  difficulty  of  going  into  the  consideration  of  minute 
details  in  a  large  body,  but  not  less  desirable  to  be  avoided.  Each 
of  these  modes  of  proceeding,  however,  is  attended  with  some  ad- 
vantages. A  bill,  of  few  provisions,  and  simple  in  its  structure, 
may  safely  be  intrusted  to  be  framed  by  a  single  member,  and  the 
time  of  the  house  thereby  saved ;  whilst  on  the  other  hand,  the 
principles  upon  which  a  bill  of  complicated  and  various  structure 
is  to  be  framed,  as  they  can  only,  so  they  can  most  readily,  be  de- 
termined by  the  house  itself.  In  the  system  which  the  experience 
of  three  centuries  has  established  in  the  legislative  assembhes  of 
England  and  of  the  United  Slates,  the  inconveniences  have  been 
avoided,  and  the  advantages  saved,  of  these  opposite  modes  of  pro- 
ceeding. 

2057.  The  principal  thing  to  be  observed,  with  regard  to  the 
proper  form  for  a  bill  to  have,  is,  that  it  should  be  as  nearly  as  pos- 
sible in  that  form  in  which,  if  agreed  to  at  all,  it  may  ultimately 
receive  the  sanction  of  the  house ;  or  in  which,  if  not  immediately 
acceptable,  it  may  most. readily  be  amended,  so  as  at  last  to  be 
brought  into  the  requisite  form ;  and,  to  this  end,  the  various  pre- 
hminary  proceedings  which  take  place  are  directed.  These  pro- 
ceedings are  usually  more  or  less  elaborate  and  extended,  in  each 
particular  case,  according  to  the  nature  of  the  subject-matter,  the 
information  possessed  by  the  house  wdth  reference  to  it,  the  form 
necessary,  to  be  given  to  the  bill,  and  to  other  circumstances  of  a 
like  character.  Where  the  nature  of  a  contemplated  bill  is  such 
that  no  preliminary  steps,  or  very  few,  are  necessary  to  be  taken, 
wiih  a  view  to  its  introduction,  the  forms  of  proceeding  admit  of 
its  being  brought  forward  at  once ;  where,  on  the  contrary,  either 


802  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

the  subject  or  the  form  of  a  bill  requires  that  it  should  be  more 
thoroughly  considered,  or  more  carefully  prepared,  or  that  it  should 
receive  the  attention  of  the  house  previous  to  its  introduction,  there 
are  forms  and  methods  of  proceeding  adapted  to  that  end. 

2058.  In  order  to  the  introduction  of  a  bill,  however,  in  any 
form,  the  authority  of  the  house  is  necessary.  The  diiferent  modes 
in  which  this  authority  is  conferred,  are  so  connected  with  the  pre- 
liminary proceedings  above  alluded  to,  that,  before  undertaking  to 
present  the  latter,  it  will  be  necessary  to  go  into  some  explanation 
of  the  former.  The  authority  of  the  house,  for  this  purpose,  is  con- 
ferred in  two  modes,  Jirst,  by  an  order  giving  leave  to  bring  in  a  bill 
for  a  specific  purpose,  and  appointing  a  member  or  members  to 
prepare  and  bring  it  in  ;  and  second,  by  appointing  a  committee  to 
consider  a  given  subject,  with  authority,  if  they  think  proper,  to  pre- 
pare and  bring  in  a  bili  relative  thereto. 

2059.  I.  In  the  earher  periods  of  parliamentary  history,  it  ap- 
pears to  have  been  the  practice  in  both  houses,  for  the  members 
individually  to  offer  such  bills  for  the  public  good,  as  they  thought 
proper.  "  Any  member  of  the  house,"  says  Scobel,  "  may  offer  a 
bill  for  public  good,  except  it  be  for  imposing  a  tax  ;  which  is  not 
to  be  done  but  by  order  of  the  house  first  had.  If  any  public  bill 
be  tendered,  the  person  who  tenders  the  bill  must  first  open  the 
matter  of  it  to  the  house,  and  ofier  the  reasons  for  the  admitting 
thereof ;  and,  thereupon,  the  house  wiU  either  admit  or  deny  it."  ^ 
According  to  the  same  author,  "  A  private  bill,  that  concerns  a  par- 
ticular person,  is  not  to  be  offered  to  the  house  till  the  leave  of  the 
house  be  desired  and  the  substance  of  such  bill  made  known,  either 
by  motion  or  petition ;  nevertheless  the  speaker  hath  had  liberty  to 
call  for  a  private  bill  to  be  read  every  morning."  ^  The  practice  of 
introducing  bills  by  individual  members,  still  prevails  in  reference 
to  public  biUs  in  the  house  of  lords ;  in  which  any  peer  is  at  hberty 
to  present  a  bill,  unless  it  be  a  private  one,^  and  have  it  laid  on  the 
tablc-i 

2060.  In  the  house  of  commons,  the  offering  of  bills  by  individual 

1  Scobe),  40,  41.  peer,  in  order  to  put  to  the  test  the  right  of 

«  Scobel,  41.  •  any  noble  lord  to  brinj;  into  the  hoxise  any  bill 

8  Lords'  Jour.  LXIII.  281.  that  ho  pleased,  brought  in  a  bill  containing  a 

*  May,  345;  Lords'  Deb.  III.  28,  99;  Hans,  caricature  print  of  Mr.  Fox  and  Lord  North; 

(1),  TIT.  24;  Same,  (3),  XIIL  1188.    In   a   de-  and  a  question  arose,  whether  he  had  a  right 

bate  in  the  house  of  lords,  Jttly  2,  1832,  Lord  to  introduce  and  lay  on  the  table  a  bill  of  that 

Holland  said,  that  every  peerUiad  a  right  to  kind,  and    it    was  decided  that  he  could." 

bring  in  a  bill  without  leave  of  ihe  house;  and  Hans.  (3),  XIII.  1188.    See  also  Pari.  Reg.  (2), 

related  the  following  anecdote  in  confirmation  XIV.  16. 

»f  his  statement:  "In  the  year  1784,  a  noble 


Chap.  I.]  public  bills.  803 

members,  without  previous  leave,  has  been  long  discontinued ; '  and, 
according  to  the  modern  practice,  no  member  is  at  liberty  to  ofier  a 
bill  until  leave  has  been  first  granted  by  the  house ;  2  nor,  when 
leave  has  been  granted,  can  a  Ijill  be  presented  but  by  the  mem- 
bers or  one  of  the  members,  named  in  the  order.^  This  change  was 
not  established  by  any  express  general  order  or  rule,  but  by  a  ^ad- 
ual  usage,  introduced  probably  in  consequence  of  the  inconven- 
ience, resulting  from  the  old  m(;thod.^  At  first,  it  was  usual  merely 
to  order  that  leave  be  given  to  bring  in  a  bill,  without  naming 
any  member  or  members  by  whom  it  was  to  be  brought  in  ;  after- 
wards, a  recommendation  was  added  to  the  order,  to  a  particular 
member  to  take  charge  of  the  business ;  at  length,  it  became  the 
constant  usage,  and  is  now  indispensable,''  to  name  one  or  more 
meml^ers  to  prepare  and  bring  in  the  bill.  According  to  the  present 
practice  of  the  house  of  commons,  therefore,  instead  of  presentino' 
or  offering  to  present  a  bill,  the  only  motion  which  can  properly  be 
made  is,  that  leave  be  granted  to  bring  in  a  bill  for  such  or  such  a 
purpose,  or  with  the  particular  title  mentioned.  Sometimes  the 
motion  is  framed  in  such  a  manner,  that  instead  of  giving  leave  to 
bring  in  a  bill,  the  house  orders  one  to  be  brought  in ;  the  effect  of 
which  is  the  same.^ 

2061.  II.  Another  form,  in  which  the  introduction  of  a  bill  is 
authorized,  is  where  a  committee  is  appointed  to  consider  a  given 
subject,  with  authority,  if  it  thinks  proper,  to  prepare  and  bring  in 
a  bill  relative  thereto."  This  form  of  proceeding  does  not  appear 
to  have  been  much,  if  at  all,  used  of  late  years ;  for  the  reason  prob- 
ably, that,  in  regard  to  public  biUs,  the  preliminary  proceedings  of 
the  house  render  it  unnecessary  to  confer  upon  a  committee  a 

1  Comm.  Deb.  VII.  262.  usual  method  of  proceeding  in  the  house  of 

*  May,  271.  commons,  as  to  the  bnngiiig  in  of  bills,  was 
»  Comm.  Jour.  XXXIII.  255.                              first  to  move  for  leave  to  bring  in  a  bill  for 

*  In  February,  1G67,  there  is  the  following  such  or  such  purposes,  and  that  being  agreed 
entry  in  the  Journal  of  the  Commons,  (vol.  to,  the  liouse  then  ordered  some  of  their  own 
IX.  52):  "  A  bill  for  frequent  holding  of  parlia-  number  to  prepare  and  bring  in  the  bill;  that 
mcnts  was  read.  Ordered,  that  the  person  who  though  this  was  the  usual  method,  there  was 
brought  in  the  bill  do  withdraw  it.  Ordered,  a  precedent,  from  which  it  appeared,  that  thn 
that  no  bill  of  this  nature  be  tendered  to  the  solicitor-general  (afterwards  Lord  Hardwicke) 
house,  but  by  leave  of  the  house,  and  order  moved  for  leave  to  bring  up  such  a  bill,  which 
obtained,  after  ten  of  the  clock  in  the  morn-  was  granted,  and  he  immediately  brouiiht  up 
ing."  the  bill.     Upon  this  statement  being  made,  tno 

*  Comm.  Jour.  XXXIIL  255.  motion  to  bring  up  was  waived,  and  the  ques- 

*  In  the  Ctii  George  II.,  a  member  having  tion  put  in  the  usual  form.  Comm.  Deb.  VII. 
moved  for  leave  to  bring  up  a  bill  which  he  261,  267. 

held  in  his  hand,  a  debate  ensued  as  to  the         '  Comm.  Jour.  IX   IS  296,  298;  Same,  ill 
order  nf  proceeding,  at  the  close  of  which  Mr.      74;  Same,  XIII.  655. 
Speaker  Onslow  informed  the  house,  that  the 


i 

804  LEGISLATIVE  ASSEMBLIES.  [PaRT    VIII. 

power,  which  the  house  is  generally  unwilling  to  delegate ;  and,  in 
regard  to  private  bills,  which  are  always  drawn  by  the  parties  or 
their  agents,  the  other  mode  is  the  most  appropriate. 


CHAPTER    SECOND. 

OF    THE    INTEODUCTION    OF    THE    SUBJECT   OF  A   BELL   INTO    THE 

HOUSE. 

2062.  The  introduction  of  a  bill,  as  has  been  seen,  must  be 
always  preceded  by  the  introduction  of  the  subject  iri  some  form  or 
other.  This  may  take  place  in  any  of  the  forms  in  which  business 
is  ordinarily  introduced ;  some  of  the  principal  of  which  will  now 
be  mentioned. 

Section  L    Petition. 

2063.  A  petition  is  one  of  the  most  common  and  usual  modes 
of  introducing  the  subject  of  a  bill,  especially  a  private  biU,  to  which 
it  is  now  requisite  by  the  orders  of  both  houses  of  parliament,^ 
though  formerly  private  biUs  appear  to  have  been  sometimes  intro- 
duced on  motion.2  When  a  petition  has  been  brought  up  and 
read,  and  laid  on  the  table,  a  motion  may  then  be  made  for  leave 
to  bring  in  a  bill  conformably  thereto,^  or  the  petition  may  be  pro- 
ceeded upon  in  such  other  manner  as  may  be  necessary,  with  a 
view  to  the  introduction  of  a  biU. 


Section  II.    Address  or  Message. 

2064.  Communications  from  the  crown,  as  a  message,  either 
verbal  "^  or  written,  to  one  or  both  the  houses,  or  an  address  from 
the  throne,  to  the  two  houses  together,  form  a  second  mode,  in 
which  the  subject  of  a  bill  is  often  introduced. 

1  May,  514.  "  Pari.  Reg.  IIL  148,  170;    Comm.  Jour. 

»  Comm.  Jour.  X.  313,  323,  447,  795.  XXXV.  447;  Pari.  Reg.  XIV.  169, 171. 

*  Comm.  Jour.  XVI.  512. 


Chap.  IL]  subject  of  a  bili*  805 


Section  IIL    Reading  of  some  Document  or  Record. 

2065.  A  thkd  mode,  which  is  of  very  frequent  occorrence,  is  the 
reading,  on  motion,  of  some  document  or  record,  which,  by  the 
practice  of  parliament,  is  considered  as  bringing  the  subject-matter 
before  the  house,  and  laying  the  foundation  for  a  motion  for  leave 
to  bring  in  a  bill  relating  thereto.  This  mode  of  proceeding 
undoubtedly  had  its  origin  at  a  period  anterior  to  the  invention  of 
printing,  or,  at  all  events,  before  it  had  become  as  now  the  general 
practice  to  print  almost  every  paper  or  document  of  public  interest. 
This  mode  of  introducing  a  topic  to  the  attention  of  the  house,  as 
the  ground  of  a  motion,  is  still  practised ;  but  it  is  hardly  necessary 
to  observe,  that  the  actual  reading  is  in  general  dispensed  with ; 
the  paper  or  document  being  read  shojt,  that  is,  by  a  few  of  the  first 
words,  or,  which  is  the  same  thing,  entered  in  the  journal  as 
read. 

2066.  This  form  of  proceeding  may  be  resorted  to,  with  reference 
to  every  dociunent  or  record,  which  is  of  a  public  nature,  and  of 
which  parliament  is  bound  to  take  olTicial  notice ;  as,  for  example, 
an  act,'  or  part  of  an  act,-  of  parliament,  which  is  the  constant  prac- 
tice, when  it  is  intended  to  move  for  the  repeal,  amendment,  exten- 
sion, or  revival  of  such  act ;  so  of  resolutions,  either  of  the  house 
itself^  or  of  both  houses.'*  When  a  document  is  of  a  public  nature, 
but  not  one  of  which  the  house  is  bound  to  or  can  take  oflicial 
notice,  as,  for  example,  a  proclamation  of  a  local  character,  the 
course  is  first  to  cause  a  copy  of  the  document  to  be  laid  before  the 
house  from  the  proper  authorities.^ 

2067.  This  form  of  proceeding  is  also  proper,  with  regard  to 
every  document  or  paper,  which  is  regularly  in  the  possession  of 
the  house,  whatever  its  character  may  be ;  as,  for  example,  any 
entry  in  the  journal  of  an  order,  resolution,  or  other  proceeding  of 
the  house,  whether  of  the  same  or  of  a  former  session, '  royal 
speeches  or  messages,  reports  of  committees,  minutes  of  evidence, 
accounts  and  returns,  petitions  previously  received.  When  the 
reading  has  taken  place,  it  is  then  competent  for  the  house  to  jiro- 
ceed  upon  the  subject  in  such  manner  as  may  be  thought  proper. 

»  Comm.  Deb.  XIII.  229.  *  Pari.  Deb.  V.  204. 

«  Comm.  Deb.  X.  290,  292.  *  Hans.  (1),  VI.  598,  599. 

»  Comm.  Deb.  VIII.  268;  Same,  XIV.  199; 
Pari.  Reg.  I.  12;  Same,  LVI.  659. 

68 


/ 


806  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 


Section  IV.     Motion. 

2068,  A  fourth  mode  of  introducing  the  subject-matter  of  a  bill 
is  by  a  direct  motion/  in  the  first  instance,  with  reference  to  it ;  as, 
for  example,  a  motion  that  leave  be  gi-anted  to  bring  in  a  biU,^  or 
heads  of  a  bill,^  for  the  particular  purpose ;  or  that  the  subject  be 
referred  to  a  committee  to  consider  and  report,  with  or  without 
authority  to  prepare  and  bring  in  a  bill ;  or  that  the  house  resolve 
itself  into  a  committee  for  the  consideration  of  a  particular  subject, 
or  of  heads  for  a  bill ;  ^  either  then  or  at  some  future  time ;  or  that 
the  house  then  come  to  a  resolution  respecting  the  subject^ 


CHAPTER    THIRD. 

OF  THE   INTERMEDIATE   PROCEEDINGS   BETWEEN   THE   INTRODUC- 
TION OF  THE  SUBJECT  AND  THE  INTRODUCTION  OF  A  BILL. 

2069.  Upon  the  introduction  of  the  subject-matter,  in  some  one 
of  the  modes  above  mentioned,  the  house  may  proceed  at  once  to 
make  an  order  giving  leave  to  bring  in  a  biU,  or  directing  one  to  be 
brought  in,  and  appointing  a  member  or  members  for  that  purpose. 
But  it  is  very  common,  also,  for  intermediate  proceedings  to  take 
place,  by  which  the  house  expresses  its  opinion  to  a  greater  or  less 
extent,  with  reference  to  the  subject-matter,  before  authorizing  the 
introduction  of  a  bill. 


Section  I.    Debates  of  the  House. 

2070.    Where,  upon  the  introduction  of  the  subject,  in  any  form, 
a  debate  takes  place,  a  bill  may  be  ordered,  or  leave  may  be  given, 

>  Which  the  mover  may  preface  by  a  state-         '  Pari.  Reg.  142. 
meiit  of  facts;  Pari.  Reg.  (2),  XV.  249;  Same,         <  Comm.  Deb.  XL  297. 
XVIIL  546;  Same,  XIX.  41;  Same,  XXIV.  8,         5  A  motion  for  leave  to  bring  in  a  bill  may 

87;  or  make  without  any  preface;  Pari.  Reg.  be   referred   to   a   committee  of   the   whole. 

f2),  VIL  259.  Comm,  Jour.  XXXIIL  667,  713. 

«  Pari.  Reg.  VIL  (2),  259. 


Chap.  III.]  subject  of  a  bill.  807 

or  a  committee  appointed,^  to  bring  in  a  bill,  upon  the  debates  of 
the  house.-  Frecjuent  instances  of  this  proceeding  are  to  be  met 
with  in  the  earlier  journals  of  tlie  house  of  commons.  Thus,  where 
a  biU  was  tendered  by  a  membisr,  on  behalf  of  the  creditors  of  the 
grocers'  company,  on  w  hich  a  debate  ensued,  which  was  adjourned 
and  resumed,  it  was  ordered,  that  leave  be  given  to  bring  in  a  bill, 
on  the  debates  of  the  house,  to  enforce  the  company  of  grocers  to 
pay  their  debts ;  ^  where  a  petition  was  presented  and  read,  and  a 
motion  made  that  leave  be  given  for  a  bill,  on  which  there  was  a 
debate,  leave  was  granted,  and  it  was  also  resolved  by  the  house, 
that  a  bill  be  prepared  and  brought  in  upon  the  debates  of  the 
house ;  ^  where  a  bill  previously  introduced  was  read,  and  a  debate 
arose,  the  house  resolved  that  leave  be  given  to  bring  in  a  bill 
relating  to  the  same  general  subject,  on  the  debates  of  the  house  ;^ 
where,  upon  the  report  of  an  address,  the  address  was  negatived, 
the  house  immediately  resolved  that  a  bill  for  the  same  .purpose  be 
brought  in  upon  the  debates  of  the  liouse  ; «  where  a  royal  speech 
was  taken  into  consideration  and  read,  it  was  ordered,  that  a  bill 
be  brought  in,  upon  the  debates  of  the  house,  to  make  the  militia 
more  useful ; '  where  a  motion  was  made  for  leave  to  bring  in  a 
bill,  on  which  a  debate  ensued,  leave  was  given  to  bring  in  a  biU 
upon  the  debates  of  the  house.^ 

2071.  This  practice  evidently  originated  at  the  time,  when  it 
was  the  custom  for  the  speaker  to  frame  the  question  from  the  turn 
of  the  debate.  It  supposes,  that  the  opinions  of  the  house,  with 
reference  to  the  subject-matter,  are  sufHeiently  known,  for  the  pur- 
pose of  framing  the  bill,  from  the  observations  of  the  members,  and 
the  manner  in  which  they  are.  received  by  the  house,  without  any 
formal  expression  thereof  in  the  form  of  resolutions.  It  does  not 
appear,  that  this  mode  of  proceeding  is  at  all  in  use  in  the  British 
parliament  at  the  present  time ;  though  something  equivalent  to  it 
takes  place,  when  a  bill  or  other  matter  is  recommitted  after  a 
debate  upon  it,  but  without  any  specification  of  the  purpose  of  the 
recommitment,  which  is  supposed  to  be  sufficiently  known  from  the 
course  of  the  debate. 

1  Grey's  Deb.  I.  421;    Same,  IL  96;  Same.         «  Comm.  Jour.  IX.  182. 

III.  10  18.  •  Comm.  Jour.  X.  449. 

«  Comm.  Jour.  XIX.  741.  '  Comm.  Jonr.  XII.  484. 

8  Comm.  Jour.  IX.  195.  *  Comm.  Jour.  XIII.  416. 

*  Comm.  Jour.  IX.  738.  ' 


808  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 


Section  II.    Heads;  Articles;  Resolutions. 

2072.  Another  proceeding,  by  which  the  house  expresses  its 
opinion  more  distinctly  than  by  the  turn  of  the  debates,  takes  place, 
when,  upon  consideration  of  the  subject,  it  agrees  upon  beads  for 
a  bill,'  or  upon  articles,  or  votes,  or  comes  to  resolutions  expressing 
its  opinions,  upon  which  it  gives  leave  for  or  orders  a  bill.'-  This 
mode  of  proceeding  is  in  frequent  use,  though  the  opinions  of  the 
house  are  now  expressed  in  the  form  of  resolutions  alone ;  the  terms 
heads,  articles,  votes,  being,  in  fact,  the  same. 


Section  III.     Committee. 

2073.  A  third  course,  which  is  the  most  frequent  in  modern 
times,  is  to  refer  the  subject  to  a  committee  to  be  considered  and 
matured,  before  its  consideration  by  the  house.  The  committee 
may  be  either  select,  or  of  the  whole  house,  according  as  either 
may  be  best  adapted  to  the  nature  of  the  subject.  A  select  com- 
mittee may  be  authorized,  at  the  same  time,  to  prepare  and  bring 
in  a  bill ;  but  this  is  not  according  to  the  present  practice.  The 
authority  usually  conferred  upon  a  select  committee  is  to  examine 
the  matter  referred  to  them,  and  to  report  the  same  as  it  shall 
appear  to  them,  or  with  their  opinion  thereupon.  The  report  of 
the  committee,  under  this  authority,  is  sometimes  a  mere  statement 
of  the  facts,  without  any  expression  of  opinion ;  sometimes  their 
opinion  merely ;  and  sometimes  a  statement  of  the  facts,  together 
with  their  opinion  thereupon ;  according  as  the  nature  of  the  sub- 
ject renders  one  or  another  of  these  courses  most  expedient  and 
proper. 

2074.  When  the  subject  referred  to  a  committee  only  requires  a 
statement  of  the  facts  to  be  reported,  —  as,  where  it  is  the  constant 
usage  of  parliament  to  pass  a  bill  of  a  particular  description,  upon 
certain  facts  being  proved,  of  which  various  instances  might  be 
given,  —  the  report  of  the  committee  merely  states  the  facts,  and  it 
is  for  the  house,  upon  such  a  report  being  made,  to  decide  whether 
the  facts  proved  are  sufficient  and  satisfactory,  and,  thereupon,  to 
make  or  refuse  an  order  for  the  introduction  of  a  bill.  The  facts 
may  be  presented  either  in  the  form  of  a  statement  or  narrative,  or 

1  Comra.  Jour.  IX.  552;  Grey,  IV.  334,  339;  2  Scobel,  44,  45. 

Com.  Deb.  XII.  48,  note. 


Chap.  IIL]  subject  of  a  bill.  809 

in  that  of  resolutions,  according  to  the  nature  of  the  case.  When 
the  latter  form  is  adopted,  the  practice  is  to  read  the  resolutions  and 
asfree  to  them  in  the  usual  manner. 

2075.  When  the  subject  referred  to  a  committee  is-  one  which 
only  requires  it  to  express  an  opinion,  —  a^^,  for  example,  where  a 
committee  is  appointed  "  to  inspect  and  inquire  what  laws  are  ex- 
pired, or  are  near  expiring,  and  to  report  their  opinion"  which  of 
them  ought  to  be  revived,  continued,  or  dis^continued,  the  opinion 
of  the  committee  is  reported  in  the  form  of  a  resolution  or  series 
of  resolutions.^  The  usual  course  of  proceeding  with  reference  to 
resolutions  thus  reported,  requires  that  they  should  be  read  twice 
and  agreed  to  by  the  house,  before  any  further  proceeding  is  predi- 
cated upon  them.  When  agreed  to,  the  house  may  then  give  leave 
for  or  order  a  bill  to  be  brought  in  accordingly.^  In  some  cases, 
committees  have  reported  "  heads  for  a  bill,"  instead  of  resolutions.^ 
This  is  a  difference  in  form  only,  the  propositions  thus  denominated 
being  in  substance  resolutions,  and  proceeded  with  in  the  same 
manner.'^ 

2076.  The  opinion  of  a  committee,  to  whom  a  petition  is  re- 
ferred, is  sometimes  expressed  in  a  simple  form ;  as,  for  example, 
that  the  petitioners  are  fit  to  be  relieved  by  an  act  of  parliament  ;5 
that  a  bill,  as  the  petitioner  desires,  is  just  and  reasonable ;  ^  that 
such  a  bill  as  is  prayed  for  would  be  of  good  use  and  service  to  the 
public;'  that  the  quakers  (petitioners  for  relief)  ought  to  be  re- 
lieved according  to  the  prayer  of  their  petition.^  A  report  in  this 
form  does  not  require  to  be  read  or  agreed  to  lilce  a  resolution ;  it  is 
to  be  followed  up,  if  the  house  are  of  the  same  opinion  with  the 
committee,  by  an  order  for  leave  to  bring  in  a  bill,  agreeably  to 
the  prayer  of  the  petition.^ 

2077.  The  expression  of  the  committee's  opinion  is  sometimes 
accompanied  by  a  direction  to  the  chairman,  or  to  some  other  mem- 
ber of  the  committee,  to  move  the  house  that  leave  be  granted  to 
bring  in  a  bill ;  in  which  case,  the  house  is  moved  accordingly.^*^ 
The  direction  that  the  house  be  moved  for  leave  to  bring  in  a  bill, 

1  Comm.  Jour.  IX.  728,  729.  «  Comm.  Jonr.  IX.  445;   Same,  XII.  532, 

'  In  the  earlier  journals,  there  are  instances,  Same,  XVII.  490,  496. 
in  which  this  course  was  not  thought  neces-         *  Comm.  Jour.  IX.  136,  149,  150. 
aary  to  bo  pursued;  in  one  case,  instead  of         •  Comm.  Jour.  X.  592,  597,  614. 
the  resolutions  being  read  a  second  time,  and         ^  Comm.  Jour.  X.  544,  546. 
agreed  to,  the  report  was  recommitted  to  tlio         *  Comm.  Jour.  X.  764. 
same  committee  to  prepare  a  bill  or  bills  ac-         *  Comm.  Jour.  X.  734. 

eordingly.     Comm.  Jour.  IX.  728,  729.  w  Comm.  Jour.  X.   544,546,592,597    G14; 

«  Grey,  II.  72 ;  Same,  IX.  72.  Same,  XI.  376,  424. 

68* 


810  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIU. 

is  sometimes  expressed  in  the  form  of  a  resolution,  and  may  be 
regarded  and  agreed  to  as  such ;  ^  but  this  does  not  appear  to  be 
necessary  as  a  preliminary  step.^  A  very  common  form  of  report, 
from  a  committee  of  the  whole,  is  to  direct  the  chairman  to  move 
the  house,  that  leave  be  granted  to  bring  in  a  biU ;  in  which  case, 
the  report  is  made  by  informing  the  house  of  the  direction  of  the 
committee,  and  making  the  motion  accordingly.'^ 

2078.  There  is  a  third  class  of  cases,  in  which  the  nature  of  the 
matter  referred  requires  the  committee  to  make  a  statement  of  the 
facts,  and,  at  the  same  time,  to  express  an  opinion  thereupon.  In 
these  cases,  the  statement  of  facts  and  of  opinion  is  made  in  such 
of  the  modes  respectively  above  described,  as  are  most  appropriate 
to  the  particular  case ;  as,  for  example,  a  detailed  account  of  the 
facts  and  the  opinion  of  the  committee  expressed  thereon  in  the 
form  of  resolutions ;  *  or  a  statement  of  the  facts,  with  a  recom- 
mendation of  a  bill,  in  some  of  the  forms  mentioned  above ;  ^  or 
with  a  direction  to  the  chairman  to  move  for  leave  to  bring  in  a 
bill ;  ^  or  with  both  such  recommendation  and  direction.'' 

2079.  There  are  four  classes  of  bills,  in  reference  to  which  the 
standing  orders  of  the  house  of  commons  require  that  preliminary 
proceedings  should  take  place  in  a  committee  of  the  whole  house, 
namely,  1,  bills  relating  to  rehgion,  or  the  alteration  of  the  laws 
concerning  religion  ;  ^  2,  bills  relating  to  trade,  or  the  alteration  of 
the  laws  concerning  trade ;  ^  3,  bills  for  the  expenditure  of  public 
money ;  ^'^  and  4,  bOls  for  the  laying  of  any  pubhc  aid  or,  charge 
upon  the  people.^^  Li  all  these  cases,  it  is  necessary  that  the  sub- 
ject-matter should  first  be  considered  in  a  committee  of  the  whole 
house  ;  upon  whose  resolutions  bills  may  be  ordered  to  be  prepared 
and  brought  in.^^ 

2080.  In  the  construction  and  application  of  the  standing  orders, 
the  order  concerning  religion  has  usually  been  held  to  be  applicable 
only  to  religion  in  its  spiritual  relations,  doctrines,  professions,  and 
observances,  but  not  to  the  temporalities  or  government  of  the 
church,  or  other  legal  incidents  of  religion  ;  that  the  order  concern- 
ing trade  applies  not  only  to  trade  generally,  but  also  to  any  par- 

1  Coram.  Jour.  IX.  682.  i  Coram.  Jour.  X.  544,  546. 

2  Coram.  Jour.  XL  28,  36;    29,  47;    48,  65;         8  Comm,  Jour.  XIV.  211;    Same,  XXXIIL 
51,  72.  678,  714. 

3  May,  346.  »  Comm.  Jour.  XIV.  211 ;    Same,  XXXIII, 
*  Comm.  Jour.  X.  127,  128,  169,  176;  Same,      678,  714. 

X.  789,  818.  10  Comm.  Jour.  XV.  367;  Same,  XVI.  605 

6  Comm.  .Tour.  IX.  136,  149,  ICO.  "  Comm.  Jour.  IX.  52. 

«  Comm.  Jour.  XI.  365,  366,  420.  ^  May,  346. 


Chap.  IV.]  subject  of  a  bill.  811 

ticular  trade,  if  directly  afTected  by  a  bill ;  and  that  the  order  con- 
cerning taxes  or  charges  upon  the  people,  though  it  applies  strictly 
and  without  exception  to  all  bills  that  direclly  impose  a  charge 
upon  the  people,  does  not  extend  to  bills  authorizing  the  levy  or 
application  of  rates  for  local  purposes,  by  local  officers  or  bodies 
representing  the  rate  payers.^ 


CHAPTER    FOURTH. 

OF   THE  AUTHORITY  FOR  THE  INTRODUCTION  OF  A  BILL. 

2081.  When  the  house,  either  upon  the  intioduction  of  the  sub- 
ject, or  after  the  intermediate  proceedings  above  described,  has 
determined  upon  authorizing  the  introduction  of  a  bill,  this  is 
effected  in  one  of  the  two  modes  already  described,  namely,  by  an 
order  giving  leave  to  bring  in  a  bill,  or  directing  a  bill  to  be  brought 
in,  and  naming  one  or  more  members  to  prepare  and  bring  it  in,  or 
by  the  appointment  of  a  committee  for  that  purpose. 

Section  I.    Leave  or  Order  to  bring  in  a  Bill. 

2082.  The  most  usual  form  of  authorizing  the  introduction  of  a 
bill  is  an  order  or  resolution,  that  leave  be  given  to  bring  in  a  biU 
for  a  purpose  specified,  and  naming  one  or  more  members  to  pre- 
pare and  bring  it  in.  Sometimes,  however,  instead  of  leave  being 
given,  the  form  of  the  order  is  absolute,  that  a  bill  be  brought  in. 
This  difference  appears  to  be  one  of  form  only,  at  least  so  far  as 
the  preparation  of  the  bill  is  concerned  ;  the  most  that  can  be  said 
being,  that,  in  the  one  case,  the  members  named  are  authorized, 
and  in  the  other  required,  to  bring  in  the  bill. 

2083.  The  members  thus  named  do  not  appear  to  constitute  a 
committee  ;  they  are  not  so  denominated  in  the  order ;  and  they 
have  none  of  the  usual  powers  of  a  committee,  as  to  their  time  of 
meeting,  the  number  requisite  to  a  quorum,  etc.,  conferred  upon 
them.  The  authority,  under  which  they  act,  seems  to  be  individ- 
ual ;  it  is  not  limited  as  to  time,  but  by  an  express  ordor,  and  it 

1  May,  847,  348,  349. 


812  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 

may  be  executed  by  any  one  of  them,  either  with  or  without  the 
concmTence  of  the  others.^  The  duty  required  of  them  being  sim- 
ply ministerial,  that  is,  to  prepare  a  bill  for  a  particular  purpose, 
they  have  no  discretion  except  as  to  the  selection  of  the  terms  in 
which  its  provisions  are  to  be  expressed.  When  a  bill  is  presented 
in  pursuance  of  an  authority  of  this  kind,  the  entry  in  the  journal 
is,  that  one  of  the  members  named  presented  the  bill,  pursuant  to 
order,  and  not  as  reported  from  or  by  the  direction  of  a  com- 
mittee. 

2084.  In  order  to  the  making  of  this  motion,  notice  must  be 
given  in  the  usual  manner.^  When  made,  it  is  subject  to  be  de- 
bated and  amended,  and  to  be  proceeded  with  generally  like  other 
motions.  As  a  motion,  it  must  conform  to  the  orders  of  the  house,  ■ 
consequently,  a  motion  for  leave  to  bring  in  a  bill  of  the  same  title 
with  one  already  introduced,  is  not  admissible;  inasmuch  as  it 
would  conflict  with  the  rule,  which  precludes  the  introduction  of 
the  same  question  a  second  time.^  Nor  can  leave  be  given  to  bring 
in  a  bill,  providing  for  compensation  out  of  public  money,  or  relat- 
ing to  trade  or  religion,  etc. ;  inasmuch  as  such  bills  are  required  by 
the  orders  of  the  house  to  be  first  considered  in  a  committee  of  the 
whole  housc^ 

2085.  Li  framing  this  motion,  the  same  accuracy  is  not  necessary 
as  in  the  case  of  a  resolution  or  other  proceeding  of  that  nature  ; 
it  being  sufficient  if  the  motion  indicate  the  general  purpose  of  the 
Dill  proposed.'^  On  making  the  motion,  it  is  usual  for  the  mover  to 
explain  the  objects  of  the  bill,  and  to  give  reasons  for  its  introduc- 
tion ;  but,  unless  the  motion  is  opposed,  it  is  not  customary  to  go 
into  any  lengthened  debate  upon  its  merits,  especially  if  the  subject 
lias  already  been  sufficiently  debated.*^  When,  however,  an  impor- 
tant measure  is  thus  brought  forward,  it  is  not  unusual  to  take  the 
opportunity  to  discuss  it  at  length ;  and  this  course  is  necessary, 
where  there  is  danger  of  a  negative  being  put  upon  the  motion ;  in 
which  case  the  question  could  not  be  again  brought  forward.'^ 

2086.  The  most  usual  proceeding  with  reference  to  a  motion  of 
this  sort  is,  to  amend  it  so  as  to  enlarge,^  restrain,^  or  modify ,1°  the 

1  There  are  numerous  instances  to  be  found         ^  Pari.  Reg.  (2),  X.  205, 207. 
in  the  journals,  where  a  member  was  added         «  Parl.  Reg.  XVIII.  280,  289,  294,  295,  296. 
to  those  formerly  named  to  prepare  and  bring         '  May,  345. 

in  a  bill,  and  immediately  thereupon  present-         »  Comm.  Jour.  XXXIX.  368;  Same,  XLI. 

ed  the  bill  according  to  order.  889. 

a  May,  345.  »  Comm,  Jour.  XXXV.  451 ;   Same,  LXX 

«  Pari.  Reg.  LVI.  130.  62. 

*  Pari.  Reg.  LXIII.  97,  98.  »<>  Comm.  Jour.  LXXI.  431. 


Chap.  IV.]  authority  for  bill.  813 

subject  of,  the  proposed  bill.'  The  motion  may  also  be  amended, 
so  as  to  substitute  a  select  committee  to  inquire  in  the  place  of 
leave  for  a  bill ;  ^  or  the  motion  itself  may  be  referred  to  a  commit- 
tee of  the  w  hole.'' 

2087.  If  the  motion  is  agreed  to,  and  the  order  made  accord- 
ingly, the  next  step  is  the  appoinlment,  on  motion,  of  certain  mem- 
bers (usually  the  mover  and  seconder  with  others)  to  prepare  and 
bring  in  the  bill ;  which  appointment  is  generally  made  immedi- 
ately, though  members  may  be  added  afterwards,'*  or  the  appoint- 
ment may  be  omitted  altogether  until  some  future  day ;  but,  if  not 
made  at  all,  the  order  remains  unexecuted  and  ineffectual.' 

2088.  When  the  order  has  been  made,  it  cannot  afterwards  be 
changed,  or  modified,  by  way  of  amendment.  It  is  the  usual  and 
constant  practice,  however,  to  instruct  the  members  appointed  to 
bring  in  the  bill  to  make  provision  therein  for  matters  not  contained 
within  the  terms  of  the  order.*^  Such  instructions,  as  they  do  not 
change  or  discharge  the  order,  may  be  made  on  the  same  day  on 
which  the  order  is  made,'^  as  well  as  at  any  time  afterwards. 

2089.  The  order  may  be  discharged,  either  in  whole,  or  in  part, 
like  any  other  order  of  the  house,  on  any  day  after  that  on  which 
the  order  is  made,  but  not  on  the  same  day ;  and  it  is  only  by 
means  of  discharging  the  order  in  part,  or  discharging  it  altogether 
and  renewing  it  in  some  other  form,  that  any  change  can  be  made 
in  its  terms.  Thus,  the  order  may  be  discharged  in  part,  either  as 
to  the  subject-matter,^  or  as  to  one  or  more  of  the  members  ap- 
pointed to  bring  in  the  bill :  ^  or,  it  may  be  discharged  altogether, 
and  other  proceedings  instituted  with  reference  to  the  subject-mat- 
ter of  it ;  as,  for  example,  where  the  order  is  founded  on  the  report 
of  a  committee,  the  report  may  be  recommitted ;  ^^  or,  where  it  is 
predicated  on  a  petition,  the  petition  may  be  referred  to  a  commit- 
tee ;  11  or  a  committee  to  whom  a  particular  bill  is  committed  may 
be  authorized,  by  way  of  instruction,  to  report  it  as  an  amendment 
to  that  bill ;  '^  or  the  members  appointed  to  prepare  and  bring  in 
some  other  bUl  may  be  instructed  to  make  provision  therein  for  the 

»  Pari.  Reg.  LXII.  447,  448.  *  Coram.  Jour.  XXXIV.  183;  Same,  XXXV. 

»  Comm.  Jour.  LXXI.  851,  352.  744,    762  ;     Same,    XXXVII.    644  ;     Same, 

8  Comm.  Jour.  XXXIII.  667,  713.  XXXVIII.  200;  Same,  XL.  915. 

«  Comm.  Jour.  XXXIV.  208,  212,  214,  261.  »  Comm.  Jour.  XXXV.  822. 

»  Comm.  Jour.  XXXIU.  255.  i»  Comm.  Jour.  XXXVI.  895. 

•  Comm.  Jour.  XL.  297 ;  Pari.  Reg.  (2),  XVI.  "  Comm.  Jour.  XXXIX.  177. 

17.  «  Comm.  Jour.  XXXVI.  866. 
»  Comm.  Jour.  XII.  859,  484. 


814  LEGISLATIVE    ASSEMBLIES.  [PaRT   VIII 

subject  of  "the  order ;  ^  or,  the  order  may  be  discharged  altogether, 
and  renewed  in  part ;  ^  or  renewed  with  additional  matter ;  ^  or 
renewed  in  a  modified,*  amended/'  enlarged,*^  or  restricted/  form. 
In  like  manner,  when  the  members  appointed  to  bring  in  a  bill  have 
been  instructed  to  make  a  particular  provision  therein,  the  order  for 
the  instructions  may  be  discharged,  and  other  members  appointed 
to  prepare  and  bring  in  a  bill  as  to  that  matter.^ 

2090.  When  it  is  desired  to  have  the  subject  of  a  bill,  for  which 
leave  has  been  gi-anted,  made  into  two,  the  course  is  to  make  a 
supplementary  order,  that  the  gentlemen  appointed  to  bring  in  the 
biU,  have  leave  to  bring  in  a  bill  or  bills,^  or  to  discharge  the  order, 
and  renew  it  for  a  bill  or  bills ;  ^^  and,  on  the  other  hand,  when  it  is 
desired  to  unite  into  one  two  bills,  which  different  sets  of  members 
or  committees  have  been  appointed  to  prepare  and  bring  in,  the 
course  is  to  dii'ect  the  two,  or  to  authorize  them,  if  they  see  fit,  to 
meet  and  prepare  one  bill  for  the  purposes  of  both.^^ 


Section  II.     Committee  to  prepare  and  bring  in  a  Bill. 

2091.  It  has  aheady  been  stated,  that  a  committee  may  not 
only  be  appointed  to  examine  and  report  upon  a  matter  referred 
to  it,  but,  at  the  same  time,  also,  it  may  be  authorized  to  prepare 
and  bring  in  a  bill  relative  to  the  subject  so  referred.  Where  this 
course  is  pursued,  the  power  of  the  house,  to  decide  upon  the  ex- 
pediency or  propriety  of  a  bill  relative  to  the  subject  in  question,  is 
delegated,  in  the  fh'st  instance,  and  for  the  time  being,  to  the  com- 
mittee ;  and  the  committee  is  furthermore  charged  with  the  duty  of 
preparing  and  bringing  in  a  bill,  if  they  should  think  proper.  It  is 
not  infrequent,  also,  after  the  house  has  resolved  upon  a  bill,  or  at 
the  same  time  that  it  resolves  upon  a  bLll,^^  ^q  order  the  appoint- 
ment of  a  committee,  in  the  usual  manner,  to  prepare  and  bring  it 
in.  When  this  is  the  case,  the  committee  is  appointed  in  some 
one  of  the  usual  modes ;  the  members  named  are  called  a  com- 


1  Comm.  Jour.  XXXVI.  884,  889.  i  Comm.  Jour.  XL.  852;  Same,  XLIII.  271; 

«  Coram.  Jour.  XXXVIL  40;  Same,  XLI.  Same,  XLIV.  369,  423. 

809;  Same,  XLII.  706.  «  Comm.  Jour.  XXXL  199;  Same,  XXXV. 

8  Comm.  Jour.  XXXVII.  125,  166.  762. 

*  Comm.  Jour.  XXXVIIL  900, 1048;  Same,  »  Comm.  Jour.  LVII.  233. 

XLL  877,  913;  Same,  XLIII.  302.  lo  Hans.  (1),  XL  128;  Pari.  Reg.  LXIL  200< 

»  Comm.  Jour.  XXXIV.  203;  Same,  XLIL  Comm.  Jour.  LIX.  189,  20C. 

696.  11  Comm.  Jour.  XIII.  865,  863;  Same,  XIX 

8  Comm.  .Jour.  XXXVIII.  614 ;  Same,  XLIL  361. 

761;  Same,  XLIII.  169.  12  Comm.  Jour.  IX.  297. 


Chap.  V.]  drawing  of  bill.  815 

mittee;  they  have  such  of  the  usual  powers  of  a  committee, —  as 
to  time  of  meeting,  quorum,  etc.,  as  may  be  deemed  necessary,  con- 
ferred on  them  ;  ^  and,  when  a  bill  is  presented  in  pursuance  of 
such  authority,  it  purports  to  come  from  the  committee.''^  It  is 
of  course  necessary,  when  a  committee  is  appointed  for  the  pur- 
pose of  preparing  a  bill,  that  the  members  should  act  in  the  form  of 
a  committee,  and  not  individually ;  and,  it  is  scarcely  necessary  to 
observe,  that  a  committee  for  this  purpose  may  be  instructed  in 
reference  to  the  duties  of  their  appointment,  in  the  same  manner  as 
other  committees.  Committees,  as  we  have  seen,  having  no  power, 
as  incidental  to  their  appointment,  to  report  any  thing  more  than 
their  own  opinion,  concerning  the  subject  referred  to  them,  and  not 
any  act  of  legislation,  for  the  consideration  of  the  house  to  which 
they  belong,  however  strongly  they  may  be  impressed  with  its  ne- 
cessity or  propriety ;  this  power  being  confen-ed  on  them  in  par- 
ticular instances,  and  occasionally,  either  on  the  appointment  of 
the  committee,  or  afterwards ;  it  has  now  come  to  be  the  general 
practice  in  our  legislative  assemblies  to  provide,  by  a  standing  rule, 
l.hat  all  committees,  whether  permanent  or  occasional,  may  report 
by  "  bill  or  bills  or  otherwise."  In  these  cases,  therefore,  commit- 
tees may  report,  at  once,  as  embodying  their  opinion,  a  biU  or  other 
act  of  legislation,  which  is  entitled  to  be  received  and  considered, 
in  the  same  manner  as  if  presented  to  the  house  by  its  special 
order.     This  power  has  sometimes  been  assumed. 


CHAPTER   FIFTH. 

OF  THE   PREPARATION   OR  DRAWING  AND  THE  DIFFERENT  PARTS 

OF  A  BILL. 

2092.  A  bill,  when  introduced  into  the  house,  should  be  as  nearly 
as  possible  in  that  form,  in  which,  if  agreed  to  at  all,  it  may  receive 
the  sanction  of  the  house  ;  or,  in  which,  if  not  immediately  ac- 
ceptable, it  may  most  readily  be  amended,  so  as  at  last  to  be 
brought  into  the  requisite  form.  This  is  the  purpose  in  view  in  all 
the  proceedings  which  have  thus  far  been  described.     But  these 

Comm.  Jour.  XII.  12,  859,  484,  563.  «  Comm.  Jour.  IX.  314. 


/ 


816  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

proceedings  are  only  directory.  It  remains  for  the  members  selected 
to  prepare  the  bill  to  execute  the  will  of  the  house,  so  far  as  it  has 
been  made  known.  The  drawing  of  a  bill,  —  setting  aside  its  im- 
portance as  regards  the  character  of  the  law  which  it  may  ultimately 
become,  —  is  a  matter  of  no  trifling  concern,  with  reference  to  its 
passing.  It  has  been  truly  observed,  that,  "  When  a  biU  is  hastily 
brought  in,  it  generally  requires  mature  deliberation,  and  many 
amendments  in  its  progress  through  the  two  houses,  which  always 
take  up  a  great  deal  of  time  :  Whereas,  when  it  is  maturely  con- 
sidered, and  fuUy  concerted,  before  being  brought  in,  the  first 
draught  of  the  bill  is  generally  so  perfect,  that  it  requkes  but  few 
amendments  ;  and  the  rapidity  of  its  progress  always  bears  a  propor- 
tion to  the  maturity  of  its  first  concoction."  ^ 

2093.  In  order  to  render  the  subsequent  proceedings  intelligible, 
it  will  be  necessary  to  state  and  describe  the  several  parts  of  a 
statute,  considered  in  a  parliamentary  sense,  that  is,  with  reference 
to  their  form  only.  The  different  parts,  of  which  a  statute  may 
consist,  and  most  of  which  are  essential  to  its  existence,  are,  1,  the 
title ;  2,  the  preamble ;  3,  the  statement  of  the  enacting  authority ; 

4,  the  purview  or  body  of  the  act,  divided  into  its  separate  clauses ; 

5,  the  provisos  ;  6,  the  schedules ;  and,  7,  the  date  or  day  of  its 
receiving  the  royal  assent.  Of  these  different  parts,  which  may, 
properly  enough,  be  found  in  every  statute,  the  third  and  fourth 
only  are  indispensable.  The  title  may  be  prefixed,  if  omitted ; 
the  preamble  is  frequently  dispensed  with ;  there  is  often  no  occa- 
sion for  a  proviso,  or  a  schedule  ;  and  a  date  may  be  supplied ;  but 
without  an  enacting  clause  and  a  subject-matter  there  can  be  no 
statute ;  and  neither  of  these  is  of  any  force  or  validity  as  a  statute 
without  the  other. 


Section  I.    Title. 

2094.  The  title  of  an  act  is  the  short  statement  prefixed  to  it 
of  the  purpose  or  object  which  it  has  in  view.  In  a  legal  sense, 
"  it  is  true,  that  the  title  of  an  act  of  parliament  is  no  part  of  the 
law  or  enacting  part,  no  more  than  the  title  of  a  book  is  part  of 
the  book ;  for  the  title  is  not  the  law,  but  the  name  or  description 
given  to  it  by  the  makers."  ^  In  a  parliamentary  sense,  however, 
the  title,  though  a  formal,  is  nevertheless  an  essential  and  impor- 

'  By  Sir  Charles  Wager,  Coram.  Deb.  XI.         2  By  Holt,  C.  J.  Wills  v.  Wilkim.  Mod.  Rep^ 
116,  117.  VL  62. 


Chap.  V.]  drawing  of  bill.  817 

tant,  part  of  a  bill.  It  is  usually  indicated  by  the  member  or 
members,  by  whom  the  bill  is  drawn  and  presented ;  but,  if  a  bill 
is  introduced  without  any  title,  one  may  be  put  to  it  by  the  clerk 
of  the  house  in  which  it  is  presented. 

2095.  The  description  of  a  bill,  in  the  order  by  which  leave  is 
giv'cn  to  introduce  it,  is  considered  as  indicating  the  title  of  the  bill ; 
so  far,  at  least,  that  when  a  bill  is  pending,  an  order  cannot  prop- 
erly be  made  for  leave  to  present  another  with  the  same  title ; 
though  the  title  may  be  so  general  in  its  terms,  that  different  and 
even  contradictory  provisions  might  be  comprehended  under  it.' 
The  title  should  consequently  be  as  precise  as  the  nature  of  the 
subject  wUl  admit ;  and,  in  the  house  of  commons,  there  are  stand- 
ing orders,  with  reference  to  certain  classes  of  bills,  which  require 
that  the  precise  duration  of  every  new  temporary  law  should  be 
expressed  in  the  title,  and  that  m  biUs  for  the  revival  or  continuance 
of  acts,  the  title  should  enumerate  the  several  acts  to  be  revived  or 
continued,  by  the  year,  chapter,  and  day  of  passing.^ 

2096.  The  title  of  the  bill  presented  must  agree  with  the  descrip- 
tion of  the  bill  in  the  order  of  leave.  Thus,  where  leave  was  given 
to  prepare  and  bring  in  a  bill  to  amend  an  act  with  reference  to  the 
time  of  commencing  certain  prosecutions  therein  directed  to  be 
brought,  and  a  biU  was  presented  to  amend  the  said  act  (but  with- 
out specifying  in  what  particulars)  notice  was  taken  that  the  title 
of  the  bill  presented  did  not  agree  with  the  order  of  leave,  and  the 
bill  was  thereupon  withdrawn.'^ 

2097.  In  the  house  of  commons,  the  title,  by  which  a  bill  is 
introduced  and  read,  remains  the  title  through  the  whole  proceed- 
ings, and  is  not  susceptible  of  alteration  or  amendment,  until  the 
bill  has  passed ;  unless  the  bouse  should  direct  that  one  biU  should 
be  divided  into  two,  or  that  two  should  be  combined  in  one,  in 
which  case,  a  corresponding  change  must  necessarily  be  made  in 
the  title.  When  a  bill  has  passed  in  the  commons,  the  title  is  read 
by  the  speaker,  and  a  question  put,  "  that  this  be  the  title  of  the 
bUl."  The  title  may  then  be  amended,  if  necessary,  or  so  altered, 
as  to  make  it  conformable  to  amendments,  to  which  the  bUl  may 
have  been  subjected  since  its  introduction.  In  the  house  of  lords, 
the  original  title  of  a  bill  may  be  amended  at  any  stage  at  which 
amendments  are  admissible.* 

2098.  It  is  a  consequence  of  the  practice  of  the  house  of  com- 

Pari.  Rep.  LVI.  130.  »  Comm.  Jour.  XLVm  242,  340. 

Coram.  Jour.  LIII.  84,  85.  ♦  Mav,  365. 

69 


818  LEGISLATIVE  ASSEMBLIES.  PaRT  VIIL 

mons  not  to  change  the  title  of  a  bill,  until  after  it  has  passed,  that, 
when  a  biU  is  referred  to  a  committee,  the  committee  cannot,  with- 
out special  instruction  for  the  pm-pose,  make  any  amendment,  altoT- 
ation,  or  addition,  which  is  not  within  the  title ;  the  authority  of 
the  committee  being  restricted  to  proceeding  upon  a  bill  with  that 
title.i 

2099.  The  title  of  a  bill  has  been  deemed  of  so  much  impor- 
tance, in  some  of  the  States,  that  it  has  been  made  in  them  the 
subject  of  constitutional  enactment.  Thus,  the  constitutions  of 
New  Jersey,  Maryland,  Virginia,  Kentucky,  Louisiana,  Ohio,  Indi- 
ana, Michigan,  Iowa,  and  California,  provide,  generally,  that  no 
law  shall  embrace  more  than  one  subject,  which  shall  be  expressed 
in  its  title ;  that  of  Texas,  that  no  law  shall  pass  containing  any 
matter  different  from  what  is  expressed  in  its  title  ;  those  of  New 
York,  Illinois,  INIissouri,  and  Wisconsin,  contain  the  same  restric- 
tions confined  to  private  or  local  laws ;  and  those  of  Maryland, 
Virginia,  Louisiana,  Ohio,  and  California,  provide  also,  that  no  law 
shall  be  revised,  or  amended,  by  reference  to  its  title  merely,  but 
the  act  revised,  or  the  section  amended,  shall  be  reenacted  and 
published  at  length.  The  constitution  of  New  Jersey  contains  a 
statement  of  the  reason  on  which  its  provision  as  above  is  founded, 
namely,  to  avoid  the  improper  influences  which  may  result  from 
intermixing  in  one  and  the  same  act,  such  things  as  have  no  proper 
relation  to  each  other ;  and  the  constitution  of  Indiana  declares, 
that  if  any  subject  shall  be  embraced  in  an  act  which  shall  not  be 
expressed  in  the  title,  such  act  shall  be  void  only  as  to  so  much 
thereof. 


Sectiojst  II.    Preamble. 

2100.  The  preamble  of  an  act  is  the  recital,  by  way  of  introduc- 
tion, or  inducement  to  the  enacting  part,  of  the  reasons  on  which 
the  enactment  is  founded.  The  preamble  of  a  public  statute  recites 
the  inconveniences  which  it  proposes  to  remedy,  —  as,  that  doubts 
exist  as  to  what  the  law  is,  —  or  that  some  form  of  offence  has  been 
of  frecjuent  occurrence  which  it  is  necessary  to  punish  with  addi- 
tional severity;  or  Ihe  advantages  which  it  proposes  to  effect,  —  as 
that  it  is  expedient  to  revise,  consolidate,  and  bring  into  one,  all  the 
statutes  relating  to  a  given  subject.  The  reasons,  upon  which  a 
pubhc  statute  is  passed,  are  not  generally  of  such  a  nature  that 

1  May,  358. 


Chap.  V.]  drawing  of  bill.  819 

they  can  be  defined  with  perfect  precision,  or  enumerated  in  full ; 
hence,  there  may  be  reasons  for  the  passing  of  an  act,  which  are  not 
given  in  the  preamble ;  those  which  are  given  may  be  aside  from 
the  real  occasion  of  the  law;  and  when  doubts  are  alleged,  it  may 
be,  that  no  reasontible  or  well-informed  person  ever  entertained 
any.'  The  preamble  of  a  private  act  sets  forth  the  facts  upon 
which  it  is  founded;  and  as  these  are  the  whole  inducement  for  the 
enactment,  it  is  necessary,  that  they  should  be  fully  and  truly 
stated,  and,  as  will  be  seen  hereafter,  substantially  proved  or 
admitted.  According  to  the  practice,  therefore,  which  prevails  in 
parliament,  although  the  preamble  may  sometimes  be  omitted  in 
public  statutes,  yet  it  is  always  inserted  in  private  bills,  and  must 
be  proved,  in  order  to  entitle  the  promoters  of  the  bill  to  proceed. 
"With  us,  it  is  not  customary  to  set  forth  in  the  preamble  of  a  pri- 
vate bill  a  summary  of  the  evidence  upon  which  it  rests ;  and  the 
employment  of  a  preamble  probably  depends  for  the  most  part,  both 
in  public  and  private  bills,  upon  the  taste  of  the  individual  drafts- 
man. For  the  purposes  of  amendment,  the  preamble  is  considered 
as  a  part  of  the  biU  to  which  it  is  attached. 


Section  III.     Statement  of  the  enacting  Authoritt. 

2101.  The  statement  of  the  enacting  authority,  or,  as  it  is  called 
in  the  constitutions  of  the  several  States,  the  enacting  style,  follows 
immediately  after  the  preamble,  and  is  followed  directly  by  the 
body  of  the  act.  In  ancient  times,  this  was  expressed  in  the  form 
of  a  petition  to  the  king,  which  is  still  occasionally  retained,  but 
with  the  addition  of  a  declaration  of  the  advice  and  consent  of  the 
two  houses.     The  modern  style  is  as  follows :    May  it  therefore 

PLEASE  YOUR  MAJESTY  TUAT  IT  MAY  BE  ENACTED ;  AND  BE  IT 
ENACTED  BY  THE  KING's  MOST  EXCELLENT  MAJESTY,  BY  AND  WITH 
THE  ADVICE  AND  CONSENT  OF  THE  LORDS  SPIRITUAL  AND  TEMPORAL 
AND     COMMONS,    IN    THIS    PRESENT    PARLIAMENT    ASSEMBLED,     AND     BY 

THE  AUTHORITY  OF  THE  SAME.  This  form  is  Only  used  at  the  begin- 
ning of  an  act;  each  succeeding  clause,  where  the  act  consists  of 
more  than  one,  commencing  with  the  words,  And  be  it  enacted,  or 
And  be  it  further  enacted,  only. 

2102.  The  constitutions  of  all  the  States  in  the  Union,  except 
those  of  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 

»  Dwarris,  II.  657. 


820  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

Una,  South  Carolina,  Georgia,  Louisiana,  Kentucky,  and  Arkansas, 
contain  a  statement,  under  the  name  of  the  enacting  style,  of  the 
words  ^^dth  \vhich  every  act  of  legislation,  in  those  States,  respec- 
tively, must  be  introduced,  sometimes  with,  and  sometimes  without, 
the  use  of  negative  words,  or  other  equivalent  language.  The  con- 
stitutions of  the  States  above  named,  and  of  the  United  States, 
contain  no  statement  of  an  enacting  clause.  Under  those  con- 
stitutions, therefore,  an  enacting  clause,  though  equally  requisite 
to  the  validity  of  a  law,  must  depend  mainly  upon  custom.  The 
foregoing  considerations  seem  to  call  for  three  remarks :  I.  "Where 
enacting  words  are  prescribed,  nothing  can  be  a  law  which  is  not 
introduced  by  those  very  words,  even  though  others  which  are 
equivalent,  are  at  the  same  time  used.  II.  Where  the  enacting 
words  are  not  prescribed  by  a  constitutional  provision,  the  enacting 
authority  must  notwithstanding  be  stated ;  and  any  words  which 
do  this  to  a  common  understanding  are  doubtless  sufficient ;  or  the 
words  may  be  prescribed  by  rule.^  In  this  respect  much  must 
depend  upon  usage.  III.  Whether,  where  enacting  words  are  pre- 
scribed in  a  resolve  or  joint  resolution,  can  such  resolution  have 
the  force  of  law  without  the  use  of  those  very  words,  is  a  question 
which  depends  upon  each  individual  constitution,  and  which  we 
are  not  called  ilpon  at  present  to  settle.  The  enacting  style  made 
use  of  at  the  present  time  in  congress  is  not  prescribed  by  any  con- 
stitutional provision,  or  by  any  statute,  or  by  any  rule  of  proceed- 
ing, but  rests  entirely  upon  usage. 


Section  IV.     Purview  or  Body  of  the  Act. 

2103.  This  is  the  portion  of  a  statute,  in  which  the  will  of  the 
legislative  power,  with  respect  to  the  particular  subject,  is  declared. 
Where  the  subject  of  an  act  is  at  all  complicated  in  its  character,  it  is 
usually  divided  into  a  convenient  number  of  separate  clauses,  corre- 
sponding as  near  as  may  be  to  the  several  parts  embraced  in  the 
enactment.  The  principal  forms,  in  which  the  matter  of  a  clause 
is  expressed,  are  two,  namely,  a  general  declaration  or  statement  in 
positive  terms,  and  a  similar  statement  with  a  qualification  of  such 
general  expression  by  means  of  a  saving  or  exception. 

»  Rules  of  the  honse  ->f  representatives  of  the  United  States,  for  1789;  J.  of  H.  I.  20. 


Chap.  V.]  deawinq  of  bill.  821 


Section  V.     Provisos. 

2104.  A  proviso  does  not  differ  in  its  nature  from  an  exception 
or  saving ;  inasmuch  as  the  purpose  of  it  is  to  restrain  or  qualify 
some  general  expression.  When  sucli  a  qualifying  or  restraining 
provision  constilutcs  a  clause  of  itself,  it  is  known  by  the  name  of 
a  proviso  ;  when  it  makes  a  part  of  the  clause  which  is  affected  by 
it,  it  is  an  exception  or  saving.  The  latter  is  usually  incorporated 
in  the  bill,  as  it  is  drawn  in  the  first  instance,  or  is  inserted  by  way 
of  amendment,  and  thus  makes  a  })art  of  it  when  it  is  passed  in 
one  house  and  sent  to  the  other.  In  a  bill,  which  is  drawn  or 
passed  in  this  form,  the  general  and  exceptional  statements  must 
consequently  be  considered  as  the  expression  of  one  and  the  same 
opinion,  or  of  contemporaneous  opinions.  In  the  case  of  a  proviso, 
it  is  otherwise.  A  proviso,  strictly  so  called,  does  not  generally 
make  a  part  of  the  bill  as  originally  drawn ;  it  is  either  added  by 
way  of  amendment  in  the  house  in  which  the  bill  first  passes,  or  is 
introduced  as  an  amendment  in  the  other.  It  is  consequently  an 
expression  of  opinion  subsequent  to  the  general  statement  which  it 
([ualifies ;  it  is  intended  to  control  and  modify  that  statement ;  and 
it  may  be  considered,  in  some  sort,  as  a  substitute  for  a  redraft  of 
the  bill,  which,  at  the  stage  when  a  proviso  is  usually  attached, 
could  not  conveniently  be  done.  Hence  has  resulted  a  principle  of 
law,  relative  to  the  interpretation  of  statutes,  which  makes  an  im- 
portant difference  between  a  saving  clause  and  a  proviso,  namely, 
that  where  a  saving  clause  in  a  statute  is  directly  repugnant  to  the 
purview  or  body  of  the  act,  and  cannot  stand  without  rendering 
the  act  inconsistent  and  destructive  of  itself,  the  act  must  stand, 
and  the  saving  clause  be  rejected ;  ^  but  that  where  a  proviso  is 
directly  repugnant  to  the  purview,  the  proviso  should  stand,  and  be 
held  a  repeal  of  the  pm-view,  on  the  ground  that  the  proviso  speaks 
the  last  intention  of  the  lawgiver.-  The  same  distinction  is  also 
recognized  in  pleading ;  an  exception  which  makes  a  part  of  a 
clause  must  be  negatived  ;  a  proviso,  strictly  so  called,  which 
raakeg  a  clause  of  itself,  need  not.-^ 

>  Plowden,  564.  than  as  a  legislator,  remarks  upon  the  case 

*  Fitzjjibbon,  195.  ab(?ve  cited  from  Fitzgibbon,  "  that  a  proviso, 

»  Jones  V.  Oxon,  1  Ld.  Raym.  120;  Spiers  v.  repu<iiiaiit  to  the  purview  of  the  statute,  ren- 

Parke>%  1  T.  R.  141;  Gill  v.  Scrivens,  7  T.  R.  ders  it  equally  nugatory  and  void,  as  a  rcpug- 

27;  Sled  v.  Smilh,  1  Barn.  &  Aid.  99.     Ciian-  nant  saving  clause;  and  it  is  difficult  to  see 

cellor  Kent,  v/ho  was  doubtless  more  familiar  why  the  act  should  be  destroyed  by  the  one, 

with  the  construction  of  statutes  as  a  judiie  and  not  by  the  other,  or  why  the  proviso  and 

69 


* 


( 
8:22  liEGISLATIVE   ASSEMBLIES.  '  [PaET   VIIL 

Section  VI.     Schedules. 

2105.  The  office  of  a  schedule  is  to  contain  matters  which  can- 
not readily  be  reduced  into  the  proper  form  for  a  clause,  or  which 
would  be  inconvenient  to  the  reader,  if  inserted  in  the  body  of  the 
act ;  such,  for  example,  as  blank  forms,  tables,  lists,  etc.  A  schedule 
is  properly  a  part  of  the  bill  to  which  it  is  attached. 

Section  VII.    Date. 

2106.  It  was  formerly  the  rule,  as  to  the  time  when  an  act  of 
parliament  commenced  its  operation,  that  if  no  period  was  fixed  by 
the  statute  itself,  it  took  effect  by  relation  from  the  first  day  of  the 
session  in  which  it  passed,  and  which  might  be  weeks,  if  not 
months,  before  the  act  received  the  royal  assent,  or  even  before  it 
had  been  introduced  into  parhament.  This  rule  was  established  in 
conformity  with  a  common  law  notion,  according  to  which  a  ses- 
sion of  parliament,  like  that  of  a  court  of  record,  was  accounted  in 
law  but  as  one  day,  namely,  that  on  which  it  commenced.^ 

2107.  This  rule,  though  productive  of  injustice,  even  when  the 
sessions  of  parliament  were  comparatively  short,  and  of  great  hard- 
ship and  oppression,  when  they  attained  the  length  of  modern 
times,  was  not  abrogated  until  towards  the  close  of  the  last  cen- 
tury ;  when  by  the  statute  33  George  III.  ch.  13,  the .  rule  was 
abolished  "  by  reason  of  its  manifold  injustice,"  and  it  was  enacted, 
that  statutes  should  have  effect  only  from  the  time  of  their  receiv- 
ing the  royal  assent.^  The  act  also  provides,  that  an  indorsement 
shall  be  made  by  "  the  clerk  of  the  parliaments,"  that  is,  by  the 
clerk  of  the  house  of  lords,  on  every  act  of  parliament,  of  the  day, 
month,  and  year,  when  the  same  shall  have  passed,  and  shall  have 
received  the  royal  assent ;  and  that  such  indorsement  shall  be  taken 
to  be  a  part  of  such  act. 

2108.  The  effect  of  this  principle  is  abrogated,  in  this  country, 

the  saving  clause,  when  inconsistent  with  the  haps  have  well  doubted,  whether  it  was  suffi- 

body  of  the  act,  should  not  both  of  them  be  cient  and  satisfactory.     Tlie  legislation  in  this 

equally  rejected;"   Kent's   Commentaries,  I.  country  is  probably  so  different  from  that  of 

463,  4th  ed.    If  the  learned   chancellor  fiad  England,  in  this  respect,  that  it  may  be  vei"y 

been  as  familiar  with  the  mechanism  of  Eng-  questionable   whether  the    distinction  above 

lish  statute  making,  as  he  was  with  the  doc-  suggested  ought  to  be  recognized  at  uU. 

triiies  of  English  equity,  he  would  have  been  i  Whitelocke,  I.  230. 

at  no  loss  for  the  reason  of  the  distinction,  '^n  2  Kent's  Coram.  I.  457. 
which  he  comments;  though  he  might  per- 


Chap.  V.]  drawing  of  bill.  823 

in  one  of  two  ways,  either,  first,  by  constitutional  or  legal  pro- 
visions, operating  generally  upon  all  acts  of  legislation,  or  secondly, 
by  particular  clauses  added  to  each,  specifying  the  time  when  it 
shall  go  into  operation.  In  default  of  one  or  the  olher  of  these  pro- 
visions, the  principle  of  the  common  parliamentary  law  prevails. 


Section"  VIII.     Of  the  general  Preparation  op  a  Bill. 

2109.  In  the  preparation  of  a  bill,  two  things  are  essential  to  be 
observed,  first,  that  it  correspond  in  sul>stance,  to  the  sense  or 
will  of  the  house,  so  far  as  the  opinion  of  the  house  has  been  pre- 
viously expressed ;  and,  second,  that  it  be  drawn  in  a  proper  form. 
If  a  biU  is  improperly  framed  in  either  of  these  particulars,  it  can- 
not be  allowed  to  proceed,  as  being  against  order,  but  by  the  unani- 
mous consent  of  the  house.^ 

2110.  Where  a  committee  is  appointed  to  consider  a  particular 
subject,  with  authority  also  to  prepare  and  bring  in  such  a  bill  rela- 
tive thereto,  as  the  committee  may  think  proper,  it  is  only  neces- 
sary that  the  bill  presented  should  be  relative  to  the  subject-mat- 
ter referred,  and  that  it  should  be  properly  drawn  in  point  of  form ; 
the  terms  and  provisions  of  it  are  within  the  discretion  of  the  com- 
mittee. 

2111.  Where  a  committee  is  appointed,  or  a  member  or  mem- 
bers directed  or  authorized,  to  prepare  and  bring  in  a  bill  for  a 
purpose  specified  in  the  order,-  or  in  accordance  with  the  prayer  of 
a  petition,  on  which  the  order  is  founded,-^  or  upon  the  debates  of 
the  house,  or  upon  heads,  articles,  or  resolutions,^  previously  agreed 
to  by  the  house,  the  bill  presented  must  correspond  with  the  sense 
or  will,  that  is  to  say,  the  order,  of  the  house  so  expressed. 

2112.  The  following  examples  will  serve  to  illustrate  the  rule 
stated  in  the  preceding  paragraph :  Leave  being  given  to  bring  in 
a  bill  for  regulating  the  expense  at  elections,  it  was  decided,  that 
a  provision  inserted  in  the  bill  relating  to  the  qualification  of 
members  was  unauthorized  ; '"  leave  to  bring  in  a  biU  to  repeal  an 
act  for  the  better  relief  and  employment  of  the  poor  of  certain 
parishes,  was  held  not  to  authorize  the  insertion  of  a  clause  alter- 

'  Pad.  Reg.  (2),  XVL  401.  «  Comm.  Jour.  LV.  417;  S;ime,  XLII.  524, 

s  Comm.  .Jour.  XLVL  611;   Same,  L.  374;  693,  695,  705;  Same,  XXIX.  67;  Same,  XXXL 

Samo,  I.I.  609;  Same,  XLII.  528,  543;  Same,  607;    Same,    XXXII.    843;    Same,    XXXIU. 

XLIV.   514;   Same,  XXII.  414;    Same,  443;  210,211;  Same,  LXIX.  230. 

Same,  XXXIII.  492,  654,  595;  Same,  LVI.  ♦  Comm.  Jour.  XXIL  104. 

409,  504,  521.  »  May,  350. 


824  LEGISLATIVE   ASSEMBLIES.  [PaRT   VIII. 

ing  the  law  of  settlement ;  ^  leave  being  given  for  a  bill  granting 
certain  duties  on  certificates  issued  with  respect  to  the  killing  of 
game,  it  was  held  not  competent  to  insert  in  the  bill  a  provision 
extending  the  license  to  all  descriptions  of  people,  as  well  unquali- 
fied as  qualified  ;^  leave  for  a  bill  to  prevent  forgeries  on  bankers 
was  not  considered  sufficient  ground  for  the  insertion  in  the  bill 
of  forgeries  on  any  other  persons.^ 

2113.  In  respect  to  the  form,  in  which  a  bill  ought  to  be  pre- 
sented, it  is  immaterial  by  whom,  or  by  what  authority,  it  is 
drawn  ;  *  it  must,  at  all  events,  be  drawn  in  conformity  with  the 
orders  of  the  house,  whether  relating  to  the  form  of  bills  in  general, 
or  to  particular  classes  of  bills.  The  principal  orders  in  parlia- 
ment of  a  general  character  are,  that  a  biU  should  be  drawn  in  the 
form  of  a  statute;  that  it  should  be  written  on  paper  without 
erasures  or  interlineations  ;  ^  and  that  the  proper  blanks,  for  dates, 
and  for  the  amount  of  salaries,  lolls,  rates,  and  other  charges,*^  shall 
be  left  in  it  to  be  filled  by  the  house.'  Besides  these  orders, 
there  are  standing  orders  relative  to  particular  classes  of  bills, 
which  are  equally  essential  to  be  observed ;  ^  as,  for  example,  in 
reference  to  private  bills,  that  inclosure  bills  should  have  the  names 
of  the  commissioners  inserted,''  that  a  bill,  to  which  the  consent 
of  parties  is  requisite,  should  correspond  with  the  copy  to  which 
consent  has  been  given.^^ 

2114.  Public  bills  are  prepared,  in  the  first  instance,  or  caused 
to  be  prepared,  by  those  members,  who  obtain  leave  for  their  in- 
troduction, or  who  are  ordered  by  the  house  to  prepare  and  bring 
them  in.  In  the  house  of  commons,  the  drafts  thus  made  are  taken 
to  the  public  business  office,  where  they  are  prepared  in  proper 
form  for  presentation.  Private  bills  are  prepared  by  the  parties 
themselves,  their  attorneys  or  agents.  It  was  anciently  the  practice, 
and  is  presumed  to  be  so  still,  that  "  bills  are  not  written  in  para- 

1  Comm.  Jour.  LXXX.  329.  sums,  names,  and  dates,  intended  to  be  moved 

»  Pari.  Reg.  (2),  XVI.  401.  by  the  promoters  of  a  bill.     And  wlien  the 

«  Pari.  Reg.  LX.  285.  bill   is   printed,   they  are  printed   in   italics. 

*  J.  of  H.  32d  Cong.  1st  Sess.  785.  Passages  so  filled  are  still  technicnlly  consiu- 
6  Comm.  Jour.  XXXVI.  703;  Same,  XLIII.  ered  as  blanks.     This  practice,  which  seems 

467,468;  Same,  XXIX.  926;  Same,  XXXIII.  to  be  a  convenient  one,    has  not   yet  been 

227;  Same,  674;  Same,  LVIL  47.  adopted  in  this  country.     May,  350. 

•  May,  350.  «  Comm.  Jour.  XXXVIII.  925,  938 ;  Same, 
1  Comm.  Jour.  XXXVI.  692;  Same,  XVIIL  LXX.  209. 

426;  Same,  XX VL  130,  145;  Same,  XXXIII.  »  Comm.  .Tour.   XLVIIL   308,  346;    Same, 

674;  Same,  LXVII.  511;  Same,  XX.  779.    In-  LL  495;  Same,  LV.  533,  565,  627. 

Btead  of  the  passages  actually  left  blank  in  a  w  Comm.  Jour.  XXXV.  488,  489. 
bill,  those  parts  are  now  filled  up  with  the 


Chap.  V.]  drawing  of  bill.  825 

graphs,  but  all  of  a  piece ;  not  that  the  clerks  may  read  blank, 
but  that  there  may  be  no  forging  in  it."  ^  Anciently,  it  was  requi- 
site, that  every  biU,  when  presented  to  tlie  speaker,  t-hould  be  ac- 
companied by  a  breviate  or  brief,  that  is,  an  abstract  of  Ihe  heads 
of  the  bill;-  and,  unless  so  accompanied,  the  rule  of  the  house  of 
commons  declared,  that  the  speaker  ought  not  to  open  any  bill,  or 
to  command  the  same  to  be  read.'^  It  was  also  necessary,  when  a 
bill  was  amended,  that  the  brief  should  be  amended  and  made  to 
conform  to  the  amendments  to  the  bill.  The  practice  of  preparing 
briefs  has  long  been  discontinued,  as  to  puljlic  bills,  but  is  still  re- 
quired by  the  orders  of  the  house  of  commons,  as  to  private  bills.* 

2115.  The  rule  of  parliament,  which  requires  that  every  biU 
should  be  drawn,  both  as  to  substance  and  form,  in  conformity 
with  the  orders  of  the  house,  would  be  nugatory,  unless  it  was 
equally  peremptory  to  prevent  the  introduction  or  proceeding  with 
a  bill  which  was  improperly  drawn.  Hence  it  is  the  established 
practice  that,  whenever  in  the  course  of  the  proceedings  on  a  bill, 
notice  is  taken  by  the  speaker,  or  some  member,  or  it  appears  to  the 
house  in  any  other  manner,  that  the  bill  is  drawn  contrary  to  order, 
the  proceedings  are  at  once  arrested,  and  no  further  step  can  be 
taken  with  the  bill,  without  the  unanimous  consent  of  the  house.^ 
The  form  of  proceeding  with  a  bill  is  such,  that  defects  of  this 
description  are  not,  in  general,  likely  to  be  taken  notice  of,  until  it 
has  been  received  by  the  house,  or  received  and  read  the  first  time  ; 
and  sometimes  the  defect  is  not  discovered  until  a  later  stage  ;  but, 
if  pointed  out  on  a  bill  being  presented,  the  defect  would  prevent 
the  reception  of  it,  in  the  same  manner  that  a  discovery  after  the 
reception  wiU  arrest  the  further  proceedings. 

2116.  When  notice  is  thus  taken  that  a  bill  is  objectionable  in 
point  of  order,  the  bill  cannot  proceed  further  without  the  unani- 
mous consent  of  the  house,  because  it  is  against  order,  and  every 
member  has  a  right  to  require  that  the  orders  of  the  house  shall  be 
preserved ;  nor  can  another  biU  be  introduced  without  the  like  con- 
sent, because,  wdiilst  a  biU  is  pending,  no  other  of  the  same  sub- 
stance, and  for  the  same  purpose,  can  be  brought  in  consistently 
with  order.  The  only  course  of  proceeding,  therefore,  in  such  a 
case,  is  to  withdraw  the  defective  bUl,  and  to  obtain  leave  to  pre- 

1  Grey,  IX.  143.  out  any  objection  on  the  ground  of  order,  it  is 

s  Scobel,  41.  held,  in  the  house  of  reprcsentiitives  of  the 

*  Comm.  .Tour.  VI.  570.  United  State?,  that  objections  of  that  descrip- 

*  May,  352.  tion  cannot  afterwards  be  interposed   to  the 
»  Pari.   Reg.   (2),  XVI.  401.     Where  a  bill      further   progress    of  the  bill.      J.   of  H.   82d 

has  been  received  and  proceeded  with,  with-     Coug.  1st  Sess.  785. 


/ 


826  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 

sent  a  new  one  in  a  proper  form.  If,  on  the  defect  being  noticed, 
it  is  at  once  seen  and  admitted,  the  iriends  of  the  bill  have  no  other 
course  but  to  move,  first,  for  leave  to  withdraw  it,  and  then  for 
leave  to  present  a  proper  bill  instead  thereof;  both  which  mo- 
tions are  generally  granted,  as  a  matter  of  course,  though  there 
are  instances  in  which  the  latter  has  been  refused.^  If  the  defect  is 
not  manifest,  or  the  iriends  of  the  biU  are  unwilling  to  yield  the 
point  without  a  question,  those  who  are  against  the  biU  may  move 
that  it  be  withdrawn,  or  may  make  the  supposed  iji-egularity  a 
ground  of  opposition  to  the  next  step  in  the  progress  of  the  biU. 
The  proceedings  which  take  place  in  the  withdrawal  of  a  bUl,  wiU 
be  stated  more  particularly  hereafter. 


CHAPTER    SIXTH. 

OF    THE    PRESENTATION    AND    RECEPTION    OF    A    BILL. 

2117.  When  leave  has  been  given,  or  an  order  made,  foi-  the  in- 
troduction of  a  bill,  as  above  mentioned,  (unless  it  is  founded  upon 
the  resolution  of  a  committee  of  the  whole  for  a  charge  upon  the 
people,)^  the  bill  may  be  brought  in  on  the  same  day,  and  during 
the  same  sitting,  with  that  on  which  the  order  is  made  or  leave 
given.'*^  There  is  no  rule  which  prevents  the  immediate  introduc- 
tion of  the  bill,  upon  the  making  of  the  order ;  but,  as  the  prepa- 
ration of  a  bni  requires  and  implies  consideration,  it  is  deemed 
necessary  that  some  time  should  intervene  between  the  order  for 
preparing  it,  and  the  presenting  of  it  to  the  house,*  and,  conse- 
quently, some  votes  are  generally  allowed  to  be  passed,  after  the 
making  of  the  order,  before  the  bUl  is  introduced,  even  though  it 
has  been  previously  prepared,  and  is  ready  to  be  offered.'^ 

1  Comm.  Jour.  LXIX.  230.  »  May,  350. 

2  The  staridiijg  order  of  Febniary  18,  1C67,         *  Coram.  Deb.  VII.  267. 

Comm.   .Jour.   LX.   52,   which    requires   tliat  6  It  is  not  unusual,  however,  for  bills  to  be 

every  proposition  for  a  charge  upon  the  peo-  introduced    immediately    upon    leave    being 

pie,  shall  be  referred  to  a  committee  of  the  given,  especially  where  the  leave  is  for  the  in- 

whole  house,  provides,  also,  that  it  "shall  not  troduction  of  a  new  bill,  in  a  jjroper  form,  in- 

be  presently  entered  upon,  but  adjourned  till  stead    of   one    which    has   been    withdravra. 

such  further  day  as  the  house  shall  think  fit  Comm.  Jour.  LXVIIL  304,  323;  Same,  LXX. 

to  appoint."  85. 


Chap.  VI.J      presentation  and  reception  of  eill. 


827 


2118.  In  the  house  of  lords,  as  has  been  akeady  stated,  it  has 
always  been  and  now  is,  the  right  of  a  member  to  present  any  bill 
or  petition  he  may  think  proper,  without  a  question.  In  the  house 
of  commons  the  same  practice  anciently  prevailed.  According  to 
Hackwell,  who  states  the  practice  in  his  time,  bills  were  "  either  by 
some  member  of  the  house  publicly  presented  to  the  speaker  in  the 
house,  with  some  short  speech,  setting  forth  the  needfulness  of  a 
law  in  that  behalf,  or  delivered  in  private  to  the  speaker  or  the  clerk 
of  the  parliament,  to  be  presented  to  the  house  at  some  convenient 
time."  1  At  the  present  day,  there  must  be  leave  or  an  order  of  the 
house,  to  authorize  the  bringing  in  of  a  bill,  and  the  bill  must  also 
be  offered  and  brought  up  in  the  same  manner  as  a  petition,  in  pur- 
suance of  an  order  of  December  10,  1692,  which  appears  to  have 
been  observed  as  a  standing  order,  namely,  "that  every  member 
presenting  any  bill  or  petition,  do  go  from  his  place,  down  to  the 
bar  of  the  house,  and  bring  the  same  up  from  thence  to  the  table."  ^ 

2119.  The  biU  must  be  presented  by  one  of  the  members  named 
in  the  order,  or  by  one  of  the  committee  appointed  to  prepare  and 
bring  it  in ;  if  offered  by  any  other  member,  it  cannot  be  received  ; 
or  if  the  irregularity  is  not  observed,  and  the  bill  is  received  and 
proceeded  with,  its  progress  will  be  arrested  and  the  bill  ordered  to 
be  withdrawn,  as  soon  as  the  in-egularity  is  brought  to  the  atten- 
tion of  the  house.'^ 

2120.  The  usual  practice  in  presenting  bills  in  the  house  of  com- 
mons is  thus  described :  —  "  The  member,  who  has  a  bill  to  present, 
appears  with  it  at  the  bar,  and  the  speaker  calls  upon  him  by  name. 
He  answers,  '  a  bill.  Sir ; '  and  the  speaker  desires  him  to  bring  it 
up ;  upon  which  he  carries  it  to  the  table,  and  delivers  it  to  the 
clerk  of  the  house,  who  reads  the  title  aloud  ;  when  the  bill  is  said 
to  have  been  received  by  the  house."  ^  This  proceeding,  like  many 
others  in  parliamentary  practice,  evidently  supposes  that  a  motion 
is  made  and  a  question  put  and  decided,  when,  in  fact,  no  motion 
or  question  is  made,  namely,  a  motion  that  the  bill  be  brought  up, 
and  a  question  put  thereupon,  which  is  decided  by  the  house  in  the 
afiirmative  ;  otherwise,  that  would  be  true  of  the  introduction  of  a 

1  Pari.  Reg.  LXII.  200;  Hakewill,  132, 133.  drcn;   but  I,  Mr.  Speaker,  have  a  bill  here, 

"  Ml-.  Bacon  stood  up  to  prefer  a  new  bill,  and  which  I  know  I  shall  no  sooner  be  ready  to 

said,  Jlr.  Speaker,  I  am  not  of  their  mind  that  otVer,  but  you  will   be  ready  to  receive  and 

bring  their  bills  into  this  house  obscurely,  by  approve."     D'Ewes,  626. 

delivery  only  to  yourself  or  to  the  clerk,  do-  ^  Coinm.  Jour.  X.  740. 

lighting  to  have  the  bill  to  he  t'ncerto  aulhore,  '  Comin.  Jour.  XXXIII.  253. 

aB  though  they  were  either  ashamed  of  their  *  ^la.V)  350. 
own  work,  or  afraid  to  father  their  own  chil- 


628  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

bill,  which  is  not  true  of  any  future  stage,  in  the  proceedings  upon 
it,  namely,  that  a  step  may  be  taken  in  the  progress  of  a  bill,  with- 
out a  motion  and  vote  of  the  house.  The  strictly  parliamentary 
course,  therefore,  in  the  introduction  of  a  bill,  seems  to  require,  that 
the  member  presenting  or  offering  to  present  it  should  explain  to 
the  house,  that  the  gentlemen  appointed,  or  the  committee,  as  the 
case  may  be,  have,  according  to  order,  prepared  such  a  bill  which 
he  is  ready  to  present,  and  thereupon  to  move  that  the  bill  be 
brought  up.  This  motion,  being  seconded,  is  then  to  be  put  to  the 
house  as  a  question ;  and  may  then  be  debated,  and  proceeded  with, 
generally,  in  the  same  manner  as  any  other  motion. 

2121.  In  our  legislative  assemblies,  the  ceremony  of  presenting 
a  bill  is  attended  with  little  or  no  formality.  The  member  who  is 
about  to  present  a  bill,  whether  as  the  report  of  a  committee  or 
otherwise,  rises  in  his  seat,  and  having  obtained  possession  of  the 
floor  for  the  purpose,  proceeds  to  inform  the  house,  that  he  has  a 
report  and  bill,  from  such  a  committee  or  source,  which  he  reads, 
if  he  thinks  proper,  and  thereupon  offers  to  present  the  biU  to  the 
house.  If  no  objection  is  made,  the  bill  is  of  course  presented  and 
received.  If  any  objection  is  made,  this  raises  the  question  of 
reception,  which  may  also  be  raised  by  a  direct  motion  that  the  bill 
be  or  be  not  received.  If  the  objection  is  on  the  ground  of  order, 
a  question  is  thus  presented  for  the  presiding  officer  to  decide.  If 
the  point  of  order  is  overruled,  or  the  house  suffers  the  biU  to  pro- 
ceed notwithstanding,  or  a  suspension  of  the  rules  takes  place, 
then  the  question  is  to  be  put  to  the  house,  or  it  may  be  put  in  the 
first  instance,  if  there  is  no  question  of  order,  that  the  bill  be 
received.  If  this  question  is  resolved  in  the  affirmative,  the  bill  is 
accordingly  received  and  subsequent  proceedings  had  thereon. 

2122.  Another  mode,  in  which  a  bill  is  introduced,  is  by  mes- 
sage from  the  other  house.^  When  a  biU  has  passed  in  one  house, 
it  is  then  sent  to  the  other,  with  a  message  informing  the  latter, 
that  the  former  has  passed  a  bill,  stating  the  title  of  it,  to  which  the 
concurrence  of  the  latter  is  requested.  A  question  is  always  made, 
or  supposed  to  ,be  made,  on  admitting  the  messengers ;  if  they 
should  be  refused  admittance,  the  bill  or  whatever  else  is  the  subject 
of  the  message  is,  of  course,  refused  to  be  received.  But,  such  a 
refusal,  though  possible,  is  a  proceeding  of  so  unparliamentary  a 
character,  as  to  be  scarcely  probable.  When  the  messengers  are 
admitted,  they  present  the  bill  with  which  they  are  charged,  which 

I  Cong.  Globe,  XVIII.  639. 


Chap.  VIL]  different  stages  of  a  bill.  829 

is  received  and  laid  on  the  table.  Bills  presented  in  this  manner, 
of  which  nothing  but  the  titles  can  be  previously  known,  are  ordi. 
narily  received  without  a  question ;  but  there  seems  to  be  no  good 
reason,  why  proceedings  should  not  take  place,  after  the  message  is 
delivered  similar  to  those  which  occur  when  a  bill  emanates  from 
a  committee  of  the  same  house.^ 


CHAPTER     SEVENTH. 

OF   THE    SEVERAL   STAGES   THROUGH   WHICH   A   BILL   PASSES. 

2123.  Bills,  thus  received,  whether  presented  by  members, 
reported  by  committees,  or  sent  from  the  other  house,  are,  in  all 
substantial  respects,  to  be  proceeded  with  in  the  same  manner, 
through  the  several  stages,  which  have  been  estabhshed  by  usage 
for  the  passing  of  bills.  At  each  of  these  different  stages  every 
bill,  in  a  parliamentary  sense,  presents  a  new  question,  although  it 
may,  in  fact,  be  the  same  which  has  been  formerly  considered. 
These  several  stages  have  never  been  departed  from,  although  they 
depend  upon  usage  merely,  and  are  as  much  in  force,  and  as  funda- 
mental in  our  legislative  assemblies  as  in  parliament.  The  nature 
of  the  different  stages,  through  which  each  bill  must  pass,  in  its 
progress,  before  it  becomes  a  law,  will  be  stated  more  fully,  as  we 
proceed.  They  suppose  an  interval  of  some  time  between  one  stage 
and  another,  and  this  interval  is  ordinarily  one  day  at  least  between 
the  principal  stages  ;  but  they  may  be  shorter,  and  there  is  nothing, 
in  the  usage,  to  prevent  bills  from  being  passed  through  all  their 
stages,  and  in  both  branches,  in  one  and  the  same  day,  if  the  respec- 
tive houses  so  determine.2     The  differences,  between  the  proceed- 

>  See  J.  of  S.  27th  Cong.  3(1  Sess.  271.  effect,  which  was  the  fourth  ;    it  was  then 

"  It  was  said  by  Mr.  Fox,  in  debate,  —  "  In  brought  in,  which  was  tlie  fflh  ;  it  was  after- 

the  house  of  commons,  the  form  of  passing  a  wards  read  a  Jirst,  second,  and  tltird  time, 

bill  of  importance  required  tliat  it  should  go  which  made  eif/ht;  and  the  passing  made  nint 

through  several  stages.    It  was  fir.st  (that  is,  stages,  in  which  a  bill  must  pass,  before  it  left 

the  subject)  committed,  which  was  the  Jirst  that  house.    The  reason  of  these  dilTerent 

stage;  it  was  then  reported,  this  was    the  stages  was,  in  order  to  give  parliament  an  of>- 

second;  the  report   was  read  a  second  time,  portunity  of  so  many  diflcrent  times  for  con- 

which  was  the  third;  leave  was  then  asked  sidering  its  tendency,  before  they  finally  gave 

to  bring  in  a  bill  to  carry  the  resolutions  into  their  concun-ence  to  its  passing.    It  might 

70 


830  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

ings  upon  a  bill  in  the  house  in  which  it  is  first  introduced,  and  in 
that  to  which  it  is  sent,  relate  chiefly  to  the  engrossment,  and  to  the 
manner  in  which  the  bill  is  amended.  These  differences,  as  well  as 
those  particulars  in  which  the  proceedings  of  the  two  houses  differ, 
in  other  respects,  wiU  be  pointed  out  in  their  proper  places. 

2124.  The  different  stages  of  a  bill,  or  readings,  as  they  are 
called,  have  been  thought  so  important  in  this  country,  that  in  some 
cases,  they  are  made  the  subject  of  constitutional  provision.  In 
the  constitutions  of  New  Jersey  and  North  Carolina,  it  is  required 
that  every  bill,  before  it  becomes  a  law,  shall  be  read  three  times  in 
each  house.  These  readings,  for  aught  that  appears,  may  be  on 
the  same  day,  and  there  is  no  power  conferred  on  either  branch  to 
dispense  with  the  rule.  In  the  constitutions  of  Maryland,  South 
Carolina,  Georgia,  Florida,  Alabama,  Mississippi,  Louisiana,  Ten- 
nessee, Kentucky,  Ohio,  Indiana,  Illinois,  Ai'kansas,  and  Texas,  it 
is  required,  in  differing  phraseology,  that  every  bill,  before  it  becomes 
a  law,  shall  be  read  on  three  separate  days  in  each  house ;  in  that 
of  Virginia,  the  readings  are  requued  to  be  in  the  house  in  which  a 
bill  originates;  but  this  rule  may  be  dispensed  with  by  a  vote  in 
Maryland,  Ohio,  and  Illinois,  of  three  fourths  ;  in  that  of  Virginia, 
Indiana,  and  Arkansas,  of  two  thirds ;  in  Florida,  Alabama,  Mis- 
sissippi, Louisiana,  Kentucky,  and  Texas,  of  four  fifths.  In  South 
Carolina,  there  is  no  power  to  dispense  vdth  the  rule ;  in  Georgia, 
the  ground  of  dispensation  is  actual  invasion  or  insurrection ;  in 
Tennessee,  the  readings  are  required  to  be  in  the  house  in  which 
the  biU  originates,  and  there  is  no  power  conferred  to  dispense  with 
the  rule  ;  and  in  Indiana,  the  reading  is  required  to  be  by  sec- 
tions. 

2125.  The  different  stages  or  steps,  through  which  a  bill  must 
regularly  pass,  in  its  progress  in  each  house,  were  the  invention  of 
an  early  period  of  parliamentary  history,  when  the  accomplishments 
of  reading  and  writing  were  not  so  general  as  they  now  are,  and 
when  the  art  of  printing  was  either  unknown,  or  very  little  prac 
tised.^     The  principal  of  these   stages  were  the  several  readings, 

pass  the  committee,  report,  first,  second,  and  representatives,  to  be  exceedingly  caution?  of 

third  reading,  and  yet  be  rejected  by  parlia-  any  measure   being    adopted,   whicli    might 

ment  discovering  some  improprieties  which  tend  to  preclude  them  from  the  free  and  un- 

they  had  not    before    observed.    This    law,  limited  exercise  of  their  judgments,  on  every 

therefore,  was  exceedingly  wise:  for  notliing  subject  in  which  the  interests  of  the  country 

required  more  deliberation   tlian   law  which  were  essentially  dependent."     Pari.  Reg.  (2), 

should  be  enacted  for  the  welfare,  protection,  XXI.  303,  394. 

and  government  of  the  people;  and  therefore  *  "Before  the  invention  of   printing,  and 

It  became  the  constitutional  guardians,  the  when  the  art  of  printing  was  unknown  to  three 


Chap.  VIL]  different  stages  of  a  bill.  831 

which,  as  the  term  denotes,  every  bill  received,  in  order  that  its  con- 
tents might  be  fully  known  and  understood.  At  each  of  these 
stages,  the  bill  was  read  at  length  by  the  clerk  in  the  hearing  of 
the  house,  and  was  then  "  opened,"  that  is,  a  brief  summary  of  its 
contents  stated,  l)y  the  speaker. 

2126.  The  lirst  reading  was  for  information  merely,  as  to  the 
nature  of  the  provisions,  which  thus  claimed  the  attention  of  the 
house.  If  the  1)111  as  a  whole  was  favorably  received,  it  was  ordered 
to  be  read  a  second  time.  After  the  second  reading,  it  was  debated 
both  as  to  matter  and  form.  If  the  matter  was  approved  of,  but 
the  form  was  unsatisfactory,  the  bill  was  referred  to  certain  mem- 
bers selected  for  the  purpose  by  whom  the  bill  was  carefully  revised, 
and  who  suggested  to  the  house  such  alterations  as  they  deemed 
necessary.  This  proceeding  was  denominated  the  commitment. 
The  house  then  went  through  the  bill  for  the  purpose  of  amend- 
ing it,  according  to  the  suggestions  of  the  committee,  and  in  such 
other  mode  as  they  might  tliink  proper.  , 

2127.  When  all  the  alterations  had  thus  been  made  in  the  bill, 
which  were  necessary  to  put  it  into  a  proper  form,  it  was  then 
ordered  to  be  engrossed,  "  wiiich  is  no  more  than  to  transcribe  the 
bill  fairly  out  of  the  paper,  in  which  it  was  written,  into  parch- 
ment." 1  The  purpose  of  this  proceeding  was  merely  to  make  a 
clean  copy  of  the  bill  with  the  amendments  in  their  places,  on  a 
permanent  and  substantial  material. 

2128.  When  engrossed,  the  bill  was  then  read  a  third  time,  for 
the  obvions  purpose  of  enabling  the  house  to  judge,  first,  whether 
it  was  in  the  form  in  which  it  had  been  agreed  upon,  and  secondly, 
whether,  in  that  form,  it  expressed  the  deliberate  sense  or  will  of 
the  house.  It  might  still  be  amended,  if  necessary,  provided  the 
amendments  were  such  as  could  be  conveniently  eifected  in  the 
bill  in  its  engrossed  form,  without  requiring  it  to  be  reengi'ossed. 

2129.  The  final  question  was  then  put  upon  its  passage.  If 
this  was  assented  to,  the  bill  was  sent  to  the  other  house  to  be 
there  proceeded  with  in  substantially  the  same  manner.  These 
several  stages  are  still  in  use  in  the  passing  of  bills  ;  the  engross- 

fourths  of  tlie  deputies  of  the  nation,  to  sup-  antique    regulation.      These    three    readings 

ply  this  deficiency,  it  was  directed  that  every  have  served  to  mark  three  distinct  degrees  — 

bill  should  be  read  three  times  in  the  house,  three  epochs  —  iu  the  passing  of  a  bill,  at  each 

At  tlie  present  day,  these  three  readings  are  of  wliich  the  debate  upon  it  may  be  recora- 

purely  nominal;  tlic  clerk  confines  himself  to  menccd  at    pleasure."      Bcntliam,    Politico, 

reading  the  title  and  the  first  words.     But  a  Tactics,  Works,  IL  3o3. 

most  important  effect  has  resulted  from  this  i  D'Ewes,  18. 


832  LEGISK:VTIVE    ASSEMBLIES.  [PaRT    VIII. 

ment  being  of  course  omitted,  when  the  bill,  having  first  passed  in 
the  other  house,  is  aheady  engrossed. 

2130.  The  proceedings  with  reference  to  bills,  though  the  stages 
remain  substantially  the  same,  as  when  they  were  first  established, 
have  nevertheless  undergone  an  important  change,  since  that  pe- 
riod. At  the  time  alluded  to,  it  was  the  custom  of  parliament,  as 
has  already  been  stated,  for  the  speaker  to  frame  the  several 
questions  for  the  decision  of  the  house,  from  the  turn  of  the  debate  ; 
and  this  practice  prevailed  in  the  proceedings  on  bills,  as  well  as 
with  reference  to  other  matters.  Motions  were  occasionally  made, 
as  in  modern  times ;  but,  in  general,  the  course  of  business  was 
suggested  or  rather  dictated  by  the  speaker.  In  regard  to  bills, 
the  discretion  of  the  speaker  was  governed  by  certain  rules,  which 
were  intended  both  to  facilitate  the  expression  of  the  will  of  the 
house,  and  to  secure  the  due  and  proper  degree  of  deliberation. 
These  rules  are  fully  explained  by  Hakewell  and  Scobell,  in  their 
treatises ;  and  will  now  be  stated  so  far  as  may  be  necessary  to 
give  an  idea  of  the  system  to  which  they  belong. 

2131.  It  was  usual  for  the  speaker  to  direct  the  clerk,  both  as 
to  the  biUs  to  be  read,  and  as  to  the  time  of  reading  them ;  the 
house  sometimes  interfering  for  the  purpose  of  having  a  particular 
biU  read ;  and  the  general  practice  being,  to  devote  the  morning  to 
first  readings,  and  to  defer  second  or  third  readings  until  the  house 
had  become  full.  It  was  against  the  ordinary  course,  also,  to  read 
a  bill  more  than  once  on  the  same  day  ;  stiU  this  might  be  suffered 
for  special  reasons,  especially  when  the  house  was  in  want  of 
business  "  wherein  to  employ  themselves,"  but  only  upon  motion 
and  special  order.^ 

2132.  At  the  first  reading,  it  was  not  the  course  to  speak  to  the 
bill,  as  a  whole,  but  to  take  time  till  the  second  reading,  to  consider 
of  it.  Nor  was  it  allowable  to  speak  to  particular  parts  of  it,  or  to 
propose  any  addition  ;  as  that  would  imply  that  the  bill  itself  was 
good,  which  could  not  regularly  be  determined  until  the  second 
reading.  It  sometimes  happened,  however,  that  the  merits  of  a 
bill  were  gone  into  upon  the  first  reading,  especially  where  it  was 
objected  to  on  the  ground  of  its  being  inconvenient  and  hurtful  to 
the  commonwealth,  and  therefore  not  proper  for  the  consideration 
of  the  house.  If  a  bill  originally  begun  in  the  commons  was  there 
debated,  and  the  question  was  called  for  by  the  house,  the  speaker 
did  not  put  it,  whether  the  bill  should  be  read  a  second  time,  "  for 

1  Hackwill,  137, 139, 142. 


L/IIAP.    VIL]  DIFFERENT   STAGES   OF   A    BILL.  833 

80  it  ought  to  be  of  ordinary  course,"  but  whether  it  should  be  re- 
jected. If  the  bill  had  come  from  the  lords,  the  speaker,  "  in  favor 
and  respect  thereto,"  did  not  make  Ihe  question,  in  the  first  in- 
stance, for  rejection,  but  for  the  second  reading,  and,  if  that  were 
denied,  then  for  rejection.  But,  usually,  in  the  case  of  a  debate 
ujion  a  first  reading,  the  speaker  forbore  to  make  any  question  at 
all,  unless  he  was  much  pressed.^ 

2133.  When  a  bill  had  been  read  the  second  time,  if  no  man 
spake  against  it  either  for  matter  or  form ;  or  if  several  members 
spoke  for  the  bill,  without  taking  any  exception  to  the  form  of  it ; 
the  speaker,  if  the  bill  originated  in  the  commons,  made  the  (jues- 
tion  for  the  engrossing.  If,  as  was  usually  the  case,  the  house 
called  for  the  committing  of  the  bill,  the  first  question  was  made 
for  the  commitment ;  and  if  that  was  refused,  then  a  second  ques- 
tion for  the  engrossing.  In  the  case  of  a  biU  from  the  lords,  which 
had  been  read  the  second  time,  the  first  question  was  for  the  com- 
mitment; if  that  was  negatived,  the  bill  was  then  read  a  third 
time  (being  already  engrossed),  and  the  question  put  for  its  pas- 
sage.2  Such  was  the  method  of  proceeding  anterior  to  and  at  the 
time  when  the  authors  above  mentioned  compiled  their  respective 
works. 

2134.  According  to  the  modern  practice,  each  of  the  different 
steps  in  the  progress  of  a  biU  can  only  be  taken  in  pursuance  of  a 
motion  regularly  made  and  seconded,  or  supposed  to  be  so,  and  re- 
solved in  the  affirmative  by  the  house ;  and,  if,  at  any  point  in  the 
regular  course,  the  proper  motion  for  proceeding  with  the  bill  is  not 
made,  it  remains  precisely  in  the  state  in  which  it  is  thus  left. 
Thus,  when  a  biU  is  received,  it  is  laid  on  the  table,  and  remains 
there  without  being  read,  until  a  motion  is  made  for  the  first  read- 
ing ;  so,  when  a  bill  has  been  read  the  first  time,  no  further  pro- 
ceeding takes  place,  as  a  matter  of  course,  but  a  motion  must  be 
made  and  seconded  for  the  second  reading.  All  the  other  proceed- 
ings must,  in  like  manner,  be  instituted  by  motions  regularly  made 
and  seconded,  without  any  interference  or  direction  on  the  part  of 
the  speaker.  If  the  proper  motion  for  proceeding  with  a  bill,  at 
each  of  its  several  stages,  is  not  regularly  made,  the  biU  is  said  to 
be  dropped. 

1  Hackwill,  140,  141.  *  » Hackwill,  143,  144. . 

70* 


834  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 


CHAPTER    EIGHTH. 

OF  THE  FIRST  READING  OF  A  BILL  AND  ORDER  FOR  SECOND. 

2135.  A  bill  having  been  received  as  above  mentioned,  it  is  then 
in  order  to  move  that  it  be  read,  or,  which  is  the  same  thing,  that  it 
be  read  the  first  time.  If  this  motion  is  decided  in  the  affirmative, 
the  next  step  is  to  fix  the  time  on  which  the  first  reading  shall  take 
place ;  if  in  the  negative,  the  bill  cannot  be  read  at  all,  or  pro- 
ceeded with  any  further ;  because  no  subsequent  step  in  the  pro- 
ceedings can  be  taken  but  in  regular  course,  and  a  question  once 
decided  in  the  negative  cannot  be  renewed  in  the  same  session  of 
parliament.  The  motion  for  the  first  reading  need  not  be  made  on 
the  day  on  which  a  bill  is  received,  but  may  regularly  be  made  at 
any  time  afterwards.^  In  the  mean  time,  the  bill  may  be  suffered  to 
lie  without  any  order,  or  the  house  may  order  it  to  lie  on  the  table, 
generally,  or  to  lie  for  a  certain  number  of  days  before  being 
read.- 

2136.  -In  order  to  fix  upon  the  time  for  the  first  reading,  the  mo- 
tion must  be  either  that  the  bill  be  now  read  a  first  time,  or  that 
it  be  read  a  first  time  on  a  subsequent  day  named.  The  motion 
for  present  reading  may  be  put  to  the  queslion  as  it  stands,  or  it 
may  be  amended.  In  the  former  case,  if  decided  in  the  affirmative, 
the  biU  is  to  be  read  immediately.  K  decided  in  the  negative,  the 
bin  cannot  be  read  on  the  same  day,  nor  can  a  motion  be  regularly 
made  for  that  purpose,  because  the  house  has  already  decided,  that 
it  shaU  not  be  read  on  that  day ;  bat  the  biU  may  be  read  on  any 
other  day,  and,  consequently,  a  similar  motion  for  present  reading 
may  be  made  on  the  next  or  any  succeeding  day,  or  a  motion  may 
be  immediately  made  for  the  first  reading  on  some  future  day.^ 
This  latter  motion  is  subject  to  be  proceeded  with  in  the  same 
manner  as  if  it  had  been  made  in  the  first  instance,  except  that  it 
cannot  be  regularly  amended  so  as  again  to  become  a  motion  for 
present  reading,  which  the  house  has  already  decided  in  the  nega- 
tive. 

2137.  The  motion  for  present  reading,  that  is,  that  the  bill  be 
noiv  read,  is  also  subject  to  be  amended,  by  leaving  out  the  word 

1  DwarriB,  I.  140.  '  Comni.  Jour.  XXXIV.  291, 

»  Comm.  Jour.  XII.  586,  606,  624. 


Chap.  VITL]  first  reading  of  bill.  835 

*'  now,"  and  substituting  therefor  some  other  time.  A  motion  in 
this  form,  namely,  to  leave  out  and  insert  or  add,  as  has  already 
been  stated  m  another  place,  requires  two  questions,  first,  whether 
the  word  proposed  to  be  left  out  shall  stand  part  of  the  question, 
and  second,  if  that  question  is  decided  in  the  negative,  whether  the 
words  proposed  as  a  substitute  shall  be  inserted  or  added.  If  the 
first  question  is  decided  in  the  a/Tirmaiive,  the  proposed  amendment 
is  negatived,  and  no  other  or  farther  amendment,  which  proposes  to 
leave  out  that  word  can  be  moved ;  but  the  motion  stands  as  orig- 
inally moved,  and  must  be  put  to  the  question  for  the  present  read- 
ing. If  the  first  question  is  decided  in  the  negative,  namely,  that 
the  word  "  now "  shall  not  stand  part  of  the  question,  this  is  a 
negative  of  the  motion  for  the  present  reading,  and  the  second 
question  is  then  to  be  put,  namely,  whether  the  words  proposed  as 
a  substitute  shall  be  inserted  or  added.  On  this  question  being 
proposed,  -it  may  be  moved  to  amend  it,  by  leaving  out  and  insert- 
ing or  addinor  as  before.^  If  the  amendment  to  the  motion  for  the 
present  reading  is  moved  by  the  friends  of  the  bill,  it  is,  of  course, 
for  the  purpose  of  fixing  on  a  convenient  time  within  the  session 
for  proceeding  with  it ;  if  by  the  opponents,  it  is  for  the  purpose  of 
defeating  the  measure,  by  fixing  upon  a  day  for  the  reading  beyond 
the  probable  duration  of  the  session.  In  the  first  case,  if,  on  the 
first  question,  that  is,  on  retaining  the  word  noio,  which  is  proposed 
to  be  struck  out,  that  word  is  left  out,  the  opponents  of  the  biU 
may  move  to  amend  the  second  question,  so  as  to  postpone  the 
reading  beyond  the  session ;  and,  in  the  other  case,  if,  on  the  fii'st 
question,  the  word  noiv  is  left  out,  the  friends  of  the  bill  may  move 
an  amendment  to  the  second  question,  so  as  to  have  the  bill  read 
on  some  convenient  day  within  the  session. 

2138.  The  motion  for  reading  the  bill  on  a  future  day  named, 
may  also  be  put  to  the  question  as  it  stands,  or  it  may  be  amended. 
If  thus  put  to  the  question,  and  decided  in  the  affirmative,  the  bill 
is  accordingly  ordered  to  be  read  the  first  time  on  the  day  named ; 
if  decided  in  the  negative,  the  same  question  cannot  be  again 
moved,  but  a  motion  may  be  made  for  the  present  reading,  or  for 
the  reading  on  any  day  other  than  that  upon  which  the  decision  of 
the  house  has  already  been  pronounced.  A  motion  for  pre^^ent 
reading,  made  after  a  decision  in  the  negative  of  a  question  for 
reading  on  a  future  day,  is  subject  to  be  proceeded  with  in  the  same 
manner  as  if  originally  made,  except  that  no  amendment  of  it  ie 

1  Comm.  Jour.  LIL  601. 


836  LEGISLATIVE   ASSEMBLIES.  [PaKT    VIII. 

allo\A-ablej  which  presents  the  question  already  decided.  The  mo- 
tion for  reading  on  a  future  day  may  also  be  amended,  by  leaving 
our  the  day  named,  and  substituting  therefor  the  present  reading, 
or  the  reading  on  some  other  day,  either  more  remote  or  nearer  than 
the  day  named.  This  motion  may  be  proceeded  with  in  the  man- 
ner already  mentioned  with  reference  to  a  motion  to  amend  the 
motion  for  present  reading. 

2139.  The  regular  course  of  proceedings,  as  above  described,  re- 
quires that  a  biU  should  first  be  ordered  to  be  read,  and  that  when 
the  reading  has  been  agreed  upon,  the  time  for  it  to  take  place 
should  be  fixed.  But,  in  practice,  the  first  motion  usually  made  is, 
that  the  bill  be  now  read  the  first  time,  or  that  it  be  read  the  first 
time  on  such  a  day.  These  motions,  when  thus  made  in  the  first 
instance,  are  subject  to  be  proceeded  with  in  the  same  manner,  as 
when  made  after  the  house  has  first  ordered  the  bill  to  be  read. 

2140.  When  a  time  is  fixed  for  the  first  reading  on  a  future  day, 
the  reading  becomes  an  order  of  the  day  for  that  day.  Before  the 
day  arrives,  the  order  may  be  read  and  discharged ;  in  which  case 
the  biU  remains  in  the  same  state  in  which  it  was  when  the  order 
was  made;  and  the  proceeding  upon  it  must  afterwards  be  re- 
newed from  that  point.  On  the  day  assigned,  the  order  is  read  and 
proceeded  upon  in  the  usual  manner. 

2141.  When  the  house  has  conie,  in  any  of  the  modes  above 
described,  to  a  resolution  for  the  present  reading  of  a  bill,  it  is  there- 
upon to  be  read  immediately  by  the  clerk.  The  ceremony  attend- 
ing this  proceeding  in  the  house  of  commons,  is  thus  described  by 
Hackwill :  "  The  clerk,  with  a  loud  and  distinct  voice,  first  readeth 
the  title  of  the  bUl,  and  then  after  a  little  pause  the  bill  itself; 
w^hich  done,  (kissing  his  hand,)  he  delivereth  the  same  to  the 
speaker,  who  standeth  up  uncovered,  (whereas  otherwise  he  sitteth 
with  liis  hat  on,)  and  holding  the  biU  in  his  hand,  saith,  this  bill  is 
thus  entitled,  and  then  readeth  the  title,  which  done,  he  openeth  to 
the  house  the  substance  of  the  bill,  which  he  doth,  either  trusting  to 
his  memory,  or  using  the  help,  or  altogether  the  reading  of  his  bre- 
viate,  which  is  filed  to  the  bill,  sometimes  reading  the  bill  itself. 
When  he  hath  thus  opened  the  effect  of  the  bill,  he  declareth  to 
the  house,  that  it  is  the  first  reading  of  the  bill,  and  delivereth  the 
same  again  to  the  clerk."  ^  In  the  house  of  lords,  according  to 
Elsing,  "  the  clerk  reads  the  bill,  standing  at  the  table,  and  then 
delivers  the  same  kneeling,  unto  the  lord  chancellor,  together  with  a 

1  Hackwill,  137,  138. 


Chap.  VIIL]  first  reading  of  bill.  837 

brief  of  the  bill.  The  lord  chancellor  reads  the  title  of  the  bill,  and 
then  reports  the  effect  of  the  same,  out  of  the  brief,  and  concludes 
this  is  the  first  time  of  the  reading  of  this  bilV^^  The  praclice,  as 
described  by  these  authors,  was  that  which  prevailed  two  hundred 
years  ago.  In  modern  times,  no  essential  dirterence  has  taken 
place,  except  that  public  bills  are  not  now  accompanied  by  bre- 
viates,  and  it  is  not  the  custom  to  read  any  bill  at  length.  The 
necessity  for  reading  is  superseded  by  printing;  and  the  rule  which 
requires  a  bill  to  be  read  is  now  satisfied  by  reading  the  title  and  a 
few  of  the  first  words.  The  ceremony  above  described  is  to  be  re- 
peated, when  a  bill  is  read  the  second,  or  third  time. 

2142.  As  the  contents  of  a  bill  cannot  regularly  be  made  known 
to  the  house,  until  it  is  read,  it  is  not  usual  for  the  motion  to  read 
a  bill  the  first  time  to  be  opposed  ;2  it  is,  however,  perfectly  in  order 
to  oppose  the  bill  in  this  stage,  and  for  a  debate  to  take  place  on 
this,^  or  any  other  of  the  motions  above  mentioned.  A  debate  on 
this  motion  must  necessarily  be  confined  to  the  principle  of  the  bill, 
or  rather  to  its  contents  as  they  are  set  forth  in  the  title.^ 

2143.  The  ancient  practice,  with  regard  to  the  first  and  second 
reading  of  bills,  having  been  substantially  adopted,  in  the  house  of 
representatives  of  congress,  by  a  rule  first  adopted  in  the  code  of 
1789,  which  has  been  extensively  copied  in  other  systems  of  rules 
and  orders,  that  rule  will  be  stated,  and  the  practice  under  it,  before 
going  on  with  the  regular  course  of  proceeding. 

2144.  The  rule  in  question  is  as  follows :  — "  The  first  reading 
of  a  bill  shall  be  for  information,  and,  if  opposition  be  made  to  it, 
the  question  shall  be,  '  Shall  this  bill  be  rejected  ?  '  If  no  opposi- 
tion be  made,  or  if  the  question  to  reject  be  negatived,  the  bill  shall 
go  to  its  second  reading  without  a  question." 

2145.  In  the  consti'uction  of  this  rule,  it  has  been  decided,  that  it 
applies  as  well  to  bills  introduced  on  leave,'^  and  to  bills  from  the 
other  l)ranch,'^  as  to  bills  reported  by  committees  of  the  house  itself, 
or  introduced  in  any  other  manner,  and  read  a  first  time ;  in  regard 
to  which,  if  any  objection  is  stated  to  their  further  progress,  or  aay 
motion  is  made  which  imphes  opposition,  the  question  is  to  be 
stated  by  the  speaker  on  rejecting  the  bill  in  question ;  and  this 
objeciion,  after  being  made  and  persisted  in,  may  be  withdrawn  at 

1  Elsitijr,  Hurl.  Misc.  V.  211.  »  J.  of  H.  VIII.  292. 

2  Cav.  Deb.  I.  23.  •  J.  of  H.  II.  187,  583;  Same,  HI.  274; 
'  Cav.  Deb.  I.  25;  Pari.  Re.s;.  XXII.  189,  200.  Same,  VIII.  665;  Same,  IX.  333;  S.ime,  14th 
*  Tari.  Keg.  XVIII.  472;  Same,  XLIII.  151,  Cong.  1st  Sess.  151;  Cong.  Globe,  XXI.  1683 

'55,  150. 


I 


H38  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 

any  time  before  the  question  is  taken.^  This  question  may  be  sus- 
pended bybemg  laid  over,^  under  the  rule  ;  by  lapse  of  time  ;3  or  by  an 
adjournment  of  the  house."^  On  this  question,  ihere  may  be  a  call 
of  the  house,-^  or  the  previous  question  may  be  moved  ;  ^  but  after 
being  several  times  held  in  the  affirmative,  that  the  bill  may  be  laid 
on  the  table,"  or  that  it  may  be  postponed  to  a  day  certain  or  in- 
definite,^ it  is  now  decided^  that  neither  the  bill  itself,  nor  the  ques- 
tion of  its  rejection,  can  be  ordered  to  fie  on  the  table.  If  objection 
is  made  and  withdrawn,  or  if  no  objection  is  made,  or  if  the  ques- 
tion of  rejection  is  decided  in  the  negative,  the  bill  goes  to  its 
second  reading,  either  immediately,  or  on  the  next  or  some  suc- 
ceeding day,  according  to  the  determination  of  the  house,  without 
any  further  question.^^  We  now  resume  the  regular  progress  of  the 
bill  when  there  is  no  rule  similar  to  the  above. 

2146.  When  a  bill  has  been  read  the  first  time,  the  next  step  in 
its  progress  is  a  motion  that  it  be  read  a  second  time ;  which  mo- 
tion may  be  made  immediately,  or  may  be  deferred  to  another  day. 
If  this  motion  is  decided  in  the  affirmative,  the  next  step  is  a  motion 
to  fix  upon  the  time  for  the  second  reading ;  if,  in  the  negative,  the 
bill  cannot  proceed  further,  for  the  reasons  already  mentioned,  with 
reference  to  a  negative  decision  of  the  question  for  reading  a  biU 
the  first  time. 

2147.  In  fixing  upon  the  time  for  the  second  reading,  the  pro- 
ceedings are  similar  to  those  which  take  place  in  fixing  upon  the 
time  for  the  first ;  but,  as  in  the  ordinary  progress  of  a  bill,,  an  in- 
terval of  one  day  at  least  is  allowed  to  intervene  between  the  sev- 
eral stages  subsequent  to  the  first  reading,  it  is  not  usual,  when 
the  order  for  the  second  reading  is  made  on  the  same  day  on  which 
the  bill  has  been  read  the  first  time,  for  the  second  reading  to  take 
place  immediately,  but  to  be  deferred  until  a  future  day.  It  is 
allowable,  however,  on  extraordinary  occasions,^^  to  pass  bills 
through  more  stages  than  one,  and  even  through  aU  their  stages, 
and  in  both  houses,  on  the  same  day.  In  reference  to  the  occa- 
sions on  which  biUs  are  thus  forwarded  or  passed  with  extraordi- 

ij.  of  H.   23d  Cong.   2d   Sess.   323,   368;  1st  Sess.  151;  Same,  15th  Cong.  2d  Sess.  223; 

Cong.  Globe,  XII.  1G7.  Same,  21st  Cong.   1st  Sess.  257,  258;  Same, 

2  J.  of  H.  26th  Cong.  1st  Sess.  737.  24th  Cong.  1st  Sess.  585;  Reg.  of  Deb.  VL 

3  J.  of  H.  21st  Cong.  1st  Sess.  257,  258.  Part  2,  1049. 

♦  J.  of  H.  II.  167 ;  Same,  IX.  333 ;  Same,  474.  «  j.  of  H.  14tli  Cong.  1st  Sess.  151. 

6  J.  of  H.  21st  Cong.  1st  Sess.  257,  258,  669.  »  J.  of  H.  23d  Cong.  2d  Sess.  323 ;  Reg.  of 

8  J.  of  H.  22d  Cong.  2d  Sess.  325,  326,  327;  Deb.  VII.  574;  Same,  XI.  Part  1, 1168,  1169. 

Reg.  of  Deb.  VL  Part  2,  1049;  Cong.  Globe,  i"  Rule  116. 

XXI.  1682.  11  J.  of  H.  I.  400,  597;  Ann.  Cong.  4th  Cong, 

'  J.  of  H.  IX.  333,  474;  Same,  14th  Cong.  2d  Sess.  1576;  Same,  9th  Cong.  2d  Sess.  108. 


Chap.  VIIL]  first  reading  of  bill.  839 

nary  despatch,  it  is  sufficient  to  observe,  that  even  where  two  or 
more  stages  are  taken  on  the  same  day,  for  peculiar  reasons,  this 
departure  from  the  ordinary  practice,  although  it  requires  in  some 
cases  certain  proceedings  to  be  superadded,  does  not  make  it  neces- 
sary that  any  alteration  should  take  place  in  those  which  ordinarily 
occur.  In  general,  an  interval  of  some  days  is  suffered  to  elapse 
between  the  first  and  second  readings.  If  debate  takes  place  on 
the  motion  for  the  second  reading,  it  must  be  confined  to  the  prin- 
ciple of  the  bilV  and  cannot  be  extended  to  embrace  the  particular 
provisions,  except  so  far  as  may  be  necessary,  in  order  that  the 
principle  of  the  bill  may  be  known  therefrom.- 

2148.  When  a  bill  has  been  ordered  to  be  read  a  second  time, 
and  a  day  fixed  for  the  second  reading,  it  is  usual  to  make  an  order, 
on  motion,  that  the  bill  be  printed ;  so  that  its  contents  may  be 
published  and  distributed  to  every  member,  before  the  second  read- 
ing. Every  public  bill,  in  both  houses  of  parliament,  is  now 
ordered  to  be  printed,  except  ordinary  supply  bills,  which  merely 
embody  the  resolutions  of  the  committees  of  supply  and  of  ways 
and  means,  as  agreed  to  by  the  house,  and  the  annual  mutiny  bills, 
which  are  the  same,  with  very  few  exceptions,  year  afier  year.'^ 

2149.  A  bill  having  been  ordered  to  be  read  a  second  time,  and 
a  day  appointed  for  the  purpose,  it  is  not  in  order  to  anticipate  the 
time,  that  is,  to  order*  it  to  be  read  sooner  than  the  day  originally 
fixed ;  but  the  reading  may  be  postponed  to  a  day  more  remote. 
In  order  to  do  this,  the  course  is,  on  any  day  subsequent  to  that  on 
which  the  day  for  the  second  reading  was  appointed,  (for  no  order 
inconsistent  with  that  can  be  made  on  the  same  day,)  to  move  that 
the  order  of  the  day,  for  the  second  reading  of  the  bill  on  ihe  day 
fixed,  be  read,  for  the  purpose  of  postponing  it.  K  this  motion  is 
carried,  the  order  is  read  accordingly.  A  motion  is  then  to  be 
made,  that  the  order  be  discharged.  If  this  motion  prevails,  a 
motion  may  then  be  made  for  the  second  readmg,  on  any  day  sub- 
sequent to  that  originally  fixed.  On  this  motion,  amendments  may 
be  moved,  in  the  manner  abeady  described,  but  not  so  as  to  antici- 
pate the  time  originally  fixed.  The  motion  may  also  be  negatived 
altogether,  in  which  case,  the  state  of  the  business  is,  that  the  bill 
has  been  ordered  to  be  read  a  second  time,  but  no  time  fixed  for 
that  purpose.  This  is  also  the  case,  when  a  bill  has  been  ordered 
to  be  read  a  second  time,  on  a  particular  day,  and  on  that  day  the 

1  Hans,  (1),  II.  1026.  »  May,  351. 

»  Haus.  (3),  XXVI.  855. 


840  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIII. 

house  fails  or  is  adjourned  for  want  of  forty  members,  or  the  day 
elapses  without  the  order  being  proceeded  with. 

2150.  When  a  bill  has  been  ordered  to  be  read  a  second  time, 
but  no  time  fixed  therefor,  it  may  on  some  subsequent  day  be  read 
a  second  time,  on  motion  that  the  bill  be  now  read  the  second  time, 
without  any  time  being  first  fixed ;  or  the  house  may  then  proceed 
to  assign  a  time  for  the  second  reading. 


CHAPTER    NINTH. 

OF  THE  SECOND  READING,  AND  ORDER  FOR  COMMITMENT. 

2151.  The  second  reading,  as  has  been  seen,  may  take  place  im- 
mediately on  being  ordered ;  or  on  some  subsequent  day,  no  time 
being  fijced,  or  the  time  originally  fixed  having  failed  or  been  abro- 
gated; or  on  some  subsequent  day,  at  the  time  fixed.  The  pro- 
ceedings preliminary  to  the  second  reading,  when  no  time  is  fixed 
therefor,  have  already  been  sufficiently  explained.  When  a  time  is 
fixed  for  the  second  reading  on  a  subsequent  day,  the  second  read- 
ing is  an  order  of  the  day,  and  stands  in  the  order  book  in  its  place 
with  the  other  orders,  if  any,  for  that  day.  When  that  day  arrives, 
the  order  of  the  day  for  the  second  reading  is  read  and  proceeded 
upon,  with  the  other  orders  of  the  day. 

2152.  The  first  step  in  the  proceedings  is  a  motion  for  the  read- 
ing of  the  orders  of  the  day,  or  the  order  of  the  day  for  the  second 
reading  of  the  particular  bill.  If  this  motion  is  decided  in  the  af- 
firmative, the  order  of  the  day  is  read  accordingly,  and  then  it  is  in 
order  to  proceed  with  the  bill.  The  next  step  in  the  regular  course 
of  proceeding  is  a  motion  that  the  bill  be  now  read  the  second  time  ; 
on  which  the  proceedings  aheady  indicated,  with  reference  to  the 
present  reading  of  a  bill  the  first  time,  may  take  place.  A  motion 
may  be  made,  however,  to  discharge  the  order  for  the  second  read- 
ing, or  to  make  a  new  order  for  it  on  some  future  day.  This  last 
motion  may  be  made  use  of  by  the  opponents  of  the  bill,  for  the 
purpose  of  defeating  it,  by  postponing  the  second  reading  to  a  day 
beyond  the  session. 

2153.  It  is  deemed  proper,  however,  to  allow  the  friends  of  a  bill 
to  proceed  with  it  in  the  mode  which  they  think  most  advisable. 


Chap.  IX.]  second  reading  of  bill.  841 

either  by  moving  for  the  present  reading,  or  by  postponing  it  to  a 
more  convenient  time.     According  to  the  u.<ual  praclice,  iherefore, 
the  member  who   has   charge  of  the  bill  moves  "that  the  bill  be 
now  read  the  second  time."     This  motion,  as  the  house  has  already 
made  an  order  that  the  bill  shall  be  read  a  second  time  on  thattlay, 
need  not  be  seconded ;  and  the  same  rule  applies  to  other  similar 
stages.     The  opponents  of  the  bill,  if  it  has  any,  may  sim])ly  vote 
against  the  question,  and  so  defeat  the  second  reading  on  that  day ;  i 
but,  as,  in  this  case,  a  motion  might  be  immediately  made  to  fix  a 
time  for  the  second  reading  on  some  other  day,  or  the  bill  might  be 
proceeded  with  on  any  other  day,  without  first  fixing  the  time,  very 
little  is  gained  by  arresting  the  progi'ess  of  the  bill  for  one  day  only. 
The  ordinary  practice,  therefore,  is,  to  move  an  amendment  to  the 
question,  by  leaving  out  the  word  now,  and  adding  three  months, 
six  months,  or  any  other  term  beyond  the  probable  duration  of  the 
session.     The  postponement  of  a  bill,  in  this  manner,  is  regarded  as 
the  most  courteous  method  of  dismissing  the  bill  from  any  further 
consideration,  and  is  consequently  the  usual  method  resorted  to  in 
every  stage  of  the  proceedings,  except  on  questions  for  the  engross- 
ment or  passing  of  the  bill.     Another  reason,  which  may  be  given 
for  making  use  of  this  mode  of  defeating  a  bill,  is,  that  as  the  house 
has  already  ordered,  that  the  bill  shall  be  read  a  second  time,  and 
the  proposed  amendment  only  names  a  more  distant  day,  the  order 
of  the  house,  although  in  fact  abrogated  or  rescinded,  is  still  pre- 
served in  point  of  form.^ 

2154.  This  stage,  embracing  all  the  proceedings  which  take  place 
on  the  day  assigned  for  the  second  reading,  is  regarded  as  the  most 
important  thi'ough  which  the  bill  has  to  pass.  On  some  one  or 
more  of  the  motions  that  may  then  be  made,  the  debate  takes  place 
on  the  merits  of  the  bill,  —  the  principle  of  it  alone  being  open-  for 
discussion,  —  unless  there  is  an  understanding  among  ihe  members 
interested,  on  the  one  side  and  on  the  other,  that  ihe  merits  of  the 
bill  shall  be  discussed  at  a  later  stage.-^  Understandings  of  this 
description  are,  of  course,  of  no  binding  obligation  on  the  house,  or 
even  on  the  members  by  whom  they  are  "entered  into. 

2155.  The  second  reading  is  the  stage,  at  which  parties  are  most 
commonly  heard,  by  themselves,  or  by  their  counsel,  or  agents,  and 
to  examine  witnesses,  whenever  a  hearing  has  been  ordered  by  the 
house.     But,  as  a  hearing  may  also  take  place  at  various  other 

1  Comm.  Jour.  LXXXVIII.  399.  »  May,  353. 

»  May,  352,  353. 

71 


842  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

stages,  besides  the  second  reading,  this  proceeding  is  treated  of  by 
itself,  in  the  fifth  part. 

2156.  When  the  present  reading  of  a  bill  the  second  time  has 
been  resolved  upon,  the  bill  is  to  be  read  by  the  clerk,  with  the 
samft  ceremonies,  and  in  the  manner  aheady  mentioned,  with  refer- 
ence to  the  first  reading.  When  read  the  second  time,  the  next 
step  in  the  regular  progress,  according  to  the  modern  practice,  is  the 
commitment;  for  which  purpose,  a  motion  is  to  be  made  and 
seconded,  that  the  bill  be  committed.  If  this  motion  is  decided  in 
the  affirmative,  the  next  motion  in  regular  course  is,  that  the  bill  be 
referred  to  a  select  committee,  or  that  it  be  referred  to  a  committee 
of  the  whole  house.  A  pubhc  bill  is  usually  committed  to  a  com- 
mittee of  the  whole ;  a  private  bill  to  a  select  committee ;  though 
there  are  instances,  m  which  the  reverse  of  this  has  taken  place. 

2157.  If  a  select  committee  is  moved  for,  an  amendment  may  be 
proposed,  to  substitute  therefor  a  committee  of  the  w^hole  ;  ^  or,  if  a 
committee  of  the  whole  is  moved  for,  the  motion  may  be  amended, 
so  as  to  make  the  committee  a  select  one.  In  these  cases,  the  form 
of  the  amendment  is  such,  namely,  by  leaving  out  and  inserting, 
that  the  question  first  taken  is  equivalent,  in  general,  to  the  motion 
itself,  that  is,  whether  the  words  proposed  to  be  left  out  shall  stand 
part  of  the  question ;  though,  as  those  who  vote  in  the  affirmative 
on  this  question  only  indicate  thereby  their  preference  for  the 
motion  as  it  stands,  over  any  form  in  which  it  may  be  put  by 
amendments,  the  first  question  may  be  decided  in  the  affirmative, 
and  the  motion  itself  in  the  negative. 

2158.  K  the  bill  is  referred  to  a  select  committee,  the  members 
are  appointed,  and  the  usual  dkections  as  to  meeting,  etc.,  are 
given  to  them  in  the  ordinary  manner.  If  the  bill  is  committed  to 
a  committee  of  the  whole  house,  it  remains  to  fix  upon  the  time  for 
the  house  to  resolve  into  the  committee.  A  motion  may  be  made, 
either  that  the  house  wiU  immedia.tely,  or  that  it  will  on  some  other 
day,  resolve  into  the  said  committee ;  and,  on  these  motions, 
amendments  may  be  moved  in  the  manner  already  suggested.  K 
there  is  any  rule,  in  the  particular  assembly,  in  which  the  proceed- 
ing takes  place,  in  regard  to  the  appointment  of  committees,  those 
provisions  are,  of  course,  to  be  pursued. 

2159.  The  order  for  commitment  may  be  discharged  like  any 
other  order  of  the  house  ;  in  which  case,  the  proceeding  on  the  bill 
is  suspended  at  that  stage  of  its  progress,  and,  if  renewed,  must  be 

1  Comm.  Jour.  XLIV.  40. 


Chap.  X.]        instructions  to  committees  on  bills.  843 

taken  up  at  that  point.  A  bill  may  also  be  transforred,  from  one 
committee  to  another,  as  from  a  select  committee  to  a  committee 
of  the  whole,  or  from  the  latter  to  the  former.  Another  proceeding, 
which  occasionally  takes  place,  is  the  employment  of  the  commit- 
tee on  a  bill,  in  the  place  of  a  connnittee  or  gentlemen  appointed 
to  prepare  and  bring  in  a  bill  on  a  particular  subject.  This  hap- 
pens, when,  instead  of  a  distinct  bill,  it  is  proposed  to  insert  a  cer- 
tain statutory  provision  in  some  other  bill,  which  has  arrived  at 
this  stage  of  its  progress.  The  proper  preliminary  proceedings  in 
the  particular  case  having  been  gone  through  with,  as,  for  example, 
a  committee  of  the  whole  having  considered  a  subject,  and  come 
to  a  resolution  which  is  agreed  to  by  the  house,  the  committee  on 
a  particular  bill  is  then  empowered  by  way  of  instruction,  to  make 
provision  therein  for  the  subject  in  question.^  'It  is  also  the  com- 
mon practice,  when  a  bill  has  been  committed,  to  refer  petitions 
and  other  papers  relating  to  the  subject  of  it  to  the  committee,  for 
its  consideration  in  connection  with  the  bill. 

2160.  The  ancient  practice  of  parliament  in  regard  to  the  second 
reading  and  commitment  of  bills,  is  substantially  adopted  in  the 
lower  house  of  congi-ess,  and  in  many  other  legislative  assemblies 
of  this  country.  In  the  former,  the  rule,  by  which  this  practice  is 
sanctioned,  w^as  first  adopted  in  1794,  and  is  as  follows:  —  "  Upon 
the  second  reading  of  a  bill,  the  speaker  shall  state  it  as  ready  for 
commitment  or  engrossment ;  and,  if  committed,  then  a  question 
shall  be,  whether  to  a  select  or  standing  committee,  or  to  a  commit- 
tee of  the  whole  house ;  if  to  a  committee  of  the  whole  house,  the 
house  shall  determine  on  what  day,  if  no  motion  be  made  to  com- 
mit, the  question  shall  be  stated  on  its  engrossment." 


CHAPTER    TENTH. 

OF   INSTRUCTIONS   TO    COMMITTEES. 

2161.  The  most  frequent  proceeding,  after  a  bill  is  committed,  is 
to  instruct  the  committee.  Instructions  are  of  two  kinds,  enabling 
Dr  mandatory ;  -   the   first  authorizes  the  committee   to  do  that, 

1  Comm.  Jour.   LII.   214,  608,  (624     Same,     '    °  Hans.  (3),  VL  265,  268,  269. 
446,  568,  627;  Same,  235,  237. 


S44  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

which,  othenvase  it  coiild  not  dp,  in  virtue  of  the  reference  of  the 
bill  to  it ;  the  other  requires  the  committee  to  do  the  particular 
thing  which  is  the  subject  of  it.  Enabling  instructions  may  em- 
brace any  subject  whatever,  within  the  power  of  the  house  to  legis- 
late upon,  whether  relating  to  the  bill  referred  to  the  committee  or 
not.  But,  as  the  introduction  of  any  wholly  independent  topic  of 
leo-islation  in  this  manner  would  be  in  effect  to  overleap  all  the 
proceedings  previous  to  the  commitment,  that  is  to  say,  leave  for 
the  bill,  and  the  first  and  second  readings,  an  instruction  of  this 
sort,  though  not  objectionable  in  point  of  form,  would  not  be  likely 
to  receive  the  favor  of  the  house,  except  under  extraordinary  cu-- 
cumstances.1  Enabhng  instructions,  which  propose  to  give  the 
committee  power  to  do  what  they  are  abeady  authorized  to  do,  are 
wholly  unnecessary,  and,  therefore,  objectionable  ;2  but  it  is  for  the 
house  to  decide,  in  each  individual  case,  whether  an  instruction 
moved  is,  or  is  not,  of  this  description.^ 

2162.    Mandatory  instructions,  which  command  the  committee 
to  do  a  particular  thing,  may  relate  either  to  a   matter  aheady 
^\dthin  the  discretionary  power  of  the  committee,  or  to  some  new 
and  independent  subject.     Enabling  instructions  are  usually  con- 
fined to  subjects,  which  are  analogous,  or,  at  all  events,  not  entkely 
foreign  to  the  bill,  as,  for  example,  where  the  bill  referred  was  for 
continuing  an  act  for  a  hinited  period,  the  committee  was  instructed 
also  to  amend  it ;  ^  the  form  being  that  it  be  an  instruction  to  the 
committee,  that  they  have  power  to  make  provision  in  the  bill,  or 
to  receive  a  clause,  for  such  or  such  a  purpose.    Instructions,  which 
thus  enlarge  the  powers  of  a  committee,  are  in  general  enabling 
merely  and   not  mandatory.     The   latter  form    of   instruction  is 
usually  confined   to    something  connected  with    the  proceedings, 
and  independent  of  the  subject-matter ;  as,  that  they  cannot  admit 
counsel  to  be  heard ;  ^  or  that  they  hear  counsel  and  examine  wit- 
nesses,'^ or  that  they  do,  in  the  first  place,  examine  into  the  authority 
under  which  a  particular  person  acts  as  agent  in  a  petition  pre- 
sented to  the  house,'  or  that  they  inquire  into  the  ckcumstanccs  of 
an  agreement  between  certain  parties.^ 

2163.    It  is  by  means  of  an  instruction  to  the  committee,  that 
the  form  of  a  bill  is  changed,  as  by  making  tu^o  bills  into  one,  or 

1  Hans.  (3),  XXXVIII.  790,  791,  792,  793.  »  Comm.  Jour.  XLVI.  170. 

2  Hans.  (3),  XIV.  959.  •  «  Comm.  .Tour.  XLVI.  269. 

8  Hans.  (3),  XXXV.  551,  554,  555,  556.  '  Comm.  Jour.  XLVIII.  635. 

♦  Comm.  Jour.  LII.  554.  «  Comm.  Jour.  XLIX.  360. 


Chap.  XL]  of  coMmiMENT  and  amendment.  845 

dividing  one  into  two  or  more.^  Instructions  to  form  two  bills  into 
one  are,  in  general,  mandatory ,2  sometimes  enabling  merely  ;3  to 
divide  one  bill  into  two  or  more,  appear  always  to  be  enabling.* 
In  turning  one  bill  into  two,  or  in  making  two  bills  into  one,  the 
committee  does  not  perform  the  part  of  a  mere  scrivener,  but  reports 
the  amendments  proper  for  those  jjurposcs,  as  in  other  cases/' 

2164.  If  there  is  any  rule  in  the  assembly,  in  which  a  motion  to 
instruct  1h(>  committee  on  a  bill  is  made,  which  precludes  a  particu- 
lar amendment  from  being  made,  or  any  amendment  at  the  particu- 
lar stage  at  which  the  bill  has  then  reached,  it  is  not  in  order  to 
instmct  the  committee  to  amend  the  bill,  or  to  amend  it  in  that 
particular  manner.^ 

2165.  Amendments,  in  pursuance  of  mandatory  instructions, 
stand  upon  the  same  footing  with  other  amendments,  and  must 
be  reported  upon  by  the  committee,  and  acted  upon  by  the  house 
in  the  same  manner." 

2166.  Instructions  may  be  given  to  a  select  committee,  at  any 
time  after  its  appointment ;  and  to  a  committee  of  the  whole,  at 
any  time  previous  to  the  motion  for  the  speaker  to  leave  the  chair. 


CHAPTER  ELEVENTH. 

OF  COMMITMENT  AND  AMENDMENT. 

2167.  When  a  bill  has  been  ordered  to  be  committed  to  a  com- 
mittee of  the  whole  house,  the  business  may  be  suflfered  to  remain 
as  it  is,  to  be  resumed  on  some  future  occasion,  at  the  pleasure  of 
the  house  ;  or  the  house  may  immediately  resolve  into  the  commit- 
tee ;  or  the  order  for  commitment  may  be  followed  by  another,  fix- 
ing the  time  for  the  sitting  of  the  committee  on  some  future  day. 

2168.  When  the  sitting  of  the  committee  has  been  fixed  for  a 
subsequent  day,  the  first  proceeding,  in  entering  upon  the  business 

1  On  the  motion  for  an  instruction  of  this  connection  with  the  proceedings  and  report  of 

kind,  the  merits  of  the  bill  are  not  open  for  the  committee, 

debate.     Hans.  (3),  XXIII.  954,  955.  "  Comm.  Jour.  LV.  730,  754. 

sComm.  Jour.  XXI.  836,  839,  841;  Same,  ".I.  of  H.  29th    Cong.  2d   Sess.  452,  453; 

XXX.  832,  834,  837;  Same,  LXV.  282.  Same,  31st  Cong.  1st  Sess.  1513,  1514;  Cong. 

«  Comm.  Jour.  LVITI.  569.  Globe,  XX.  161,  584. 

«  This  subject  will  be  further  adverted  tn  In  '  J.  of  H.  27th  Cong.  2d  Sess.  725. 

71* 


846  LEGISLATIVE   ASSEMBLIES.  [PaET  VIII. 

on  that  day,  is,  for  the  house,  on  motion  for  the  purpose,  to  read  the 
order  of  the  day  for  the  house  to  resolve  itself  into  a  committee  of 
the  whole  to  consider  of  the  bill  in  question.  When  the  order  has 
been  read,  it  is  then  proper  to  make  any  motion  relative  to  the  sub- 
ject of  the  order ;  and  it  is  at  this  time,  generally,  that  petitions 
and  other  papers  are  referred,  and  insti-uctions  given  to  the  com- 
mittee ;  though  these  proceedings  may  take  place  at  any  time  after 
the  order  for  the  commitment.  At  this  time,  also,  it  may  be  moved 
to  discharge  the  order  for  the  commitment.  When  all  the  motions 
of  this  description  have  been  made  and  disposed  of,  or,  if  there  are 
.  none  such  made,  immediately  upon  the  order  being  read,  the  proper 
motion  is,  that  the  speaker  do  now  leave  the  chair. 

2169.  On  this  motion,  that  the  speaker  do  now  leave  the  chair, 
it  is  sometimes  moved  to  amend,  so  as  to  substitute  for  it  an  in- 
struction to  the  committee.  But,  in  general,  if  any  amendment  is 
moved,  it  is  for  the  purpose  of  appointing  some  other  time  for  the 
committee,  either  within  or  beyond  the  session,  in  some  one  of  the 
various  modes  already  described.  In  moving  an  amendment  for 
the  purpose  of  postponing  the  committee,  the  language  of  the 
motion  must  be  somewhat  different  from  what  it  usually  is  in  the 
analogous  motions.  The  motion  usually  made  is,  to  leave  out  the 
word  now,  and  to  add,  this  day  six  months,  or  whatever  other  time 
may  be  selected.  If  this  form  were  adopted  with  reference  to  the 
motion  for  the  speaker  to  leave  the  chair,  the  absurdity  might  arise 
of  ordering  Mr.  Speaker  "  to  leave  the  chair  this  day  six  months." 
Hence,  the  form  of  amendment,  which  is  adopted,  is,  to  leave  out 
all  the  words  after  "  that,"  in  order  to  add,  "  this  house  wiU,  on  this 
day  three  months,"  or  whatever  other  time  may  be  fixed,  "  resolve 
itself  into  a  committee,  etc."  ^  If  the  house  agrees  to  the  motion 
for  the  speaker  to  leave  the  chair,  the  committee  is  constituted  in 
the  usual  manner. 

2170.  The  principle  of  the  bill  being  supposed  to  be  affirmed 
and  sanctioned  by  the  previous  proceedings,  especially  the  second 
reading,  at  least,  so  far  as  that  the  house  may  be  supposed  to  be 
willing  to  see  the  biU  in  the  best  form  in  which  it  can  he  put,  the 
purpose  of  the  commitment  is,  that  the  details  of  the  bill  may  be 
examined  and  amended,  if  need  be,  in  such  a  manner  as  to  cai-ry 
out  the  princi])le,  and  to  effect  the  object  of  the  bill.  This  being 
the  purpose  of  the  commitment,  the  authority  of  the  committee,  as 
derived  from  its  appointment,  is  limited  and  restricted  to  the  term? 

1  May,  355. 


CnAP.    XL]  COMMITMENT   OF   BTLL.  847 

and  j)iovisions  or  rather  the  title  of  the  bill ;  having  no  power  to 
decide  upon  its  merits,  nor  to  introduce  into  it  any  provision  which 
does  not  come  fairly  within  the  ti1le.  If  any  thing  beyond  this  is 
desired  by  the  house,  it  should  be  the  subject  of  an  instruction. 

2171.  This  being  the  earliest  stage  of  a  bill,  in  which  amend- 
ments are  allowable,  it  is  necessary  now  to  explain  what  is  meant 
by  amendments,  and  in  what  manner  they  are  effected.  The  term 
amendment,  in  its  broadest  sense,  signifies  every  alteration  or  ad- 
dition made  to  a  bill  or  other  proposition,  after  its  introduction  into 
the  house,  in  which  it  first  passes,  as  well  as  every  addition  or  alter- 
ation which  is  made,  or  rather  proposed,  in  one  house  to  a  bill 
passed  by  the  other.^  But,  in  a  narrower  sense,  the  word  amend- 
ment is  used  in  parliamentary  practice  to  denote  only  one  form  of 
these  alterations ;  the  others  being  known  as  additions  and  provisos. 
These  different  significations  will  now  be  explained. 

2172.  I.  Amendment.  A  bill,  as  has  already  been  observed,  con- 
sists of  one  or  more  propositions,  in  which  the  will  of  the  law- 
maldng  power  is  declared,  in  reference  to  a  particular  subject ;  each 
of  which  propositions,  or  clauses,  as  they  are  called,  is  introduced 
by  words  of  enactment.  When  the  language  of  which  one  of 
these  clauses  is  composed,  is  changed,  either  by  leaving  out,  insert- 
ing, or  adding,  certain  words,  or  by  leaving  out  certain  words  and 
inserting  or  adding  others,  these  various  alterations  are  denominated 
amendments.  Where  words  are  added  or  inserted,  constituting  of 
themselves  a  paragraph  or  sentence,  which  may  be  read  indepen- 
dently of  the  clause,  to  which  it  is  appended,  such  paragraph  or 
sentence  will,  nevertheless,  be  an  amendment,  provided  it  relates  to 
the  clause  in  such  a  manner,  as,  when  added,  to  make  a  part  of  it. 
Consequently,  a  qualifying  paragraph  or  proviso,  which  is  added  to 
or  inserted  in  a  clause,  and  which  refers  only  to  the  clause,  to  wliich' 
it  is  thus  appended,  may  be  added  as  an  amendment. 

2173.  II.  Addition.  When  the  change  or  alteration  of  a  bill 
consists  of  the  addition  of  an  entire  clause,  containing  enacting 
words,  or  of  the  addition  of  several  such  clauses,  the  amendment  is 
denominated  an  addition,  or  more  properly,  a  schedule  of  additions, 
"  for  that  wliich  containeth  an  addition  is  called  a  schedule."  - 


»  The  term  amendment  is  sometimes  used  in  bill  be  read  the  second  time,  a  motion  is  made 

what  may  be  called  the  colloquial  language  of  to  adjourn  the  house,  or  to  adjourn  the  debate, 

parliament,  to  denote   a    secondary  motion,  this  latter  motion    is    sometimes    called    an 

moved  upon  and  taking  precedence,  for  the  amendment, 

time  being,  of  a  principal  motion;  as  if  on  a  *  Hackwill,  162. 
motion  pending  and  under  discussion  that  a 


848  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

2174.  III.  Proviso.  Where  the  purpose  of  an  independent  ad- 
dition is  to  qualify  the  general  provisions  of  the  bill,  or  to  with- 
draw from  its  operation  certain  persons,  things,  or  circumstances; 
which  would  or  might  otherwise  come  within  its  provisions,  it  is 
denominated  a  proviso.  This  kind  of  addition  derives  its  name 
from  the  words  with  which  it  is  introduced,  as  provided,  provided 
further,  provided  always,  etc.  It  generally  contains  enacting  words, 
as,  Provided  always,  and  be  it  further  enacted;  but  these  are  some- 
times omitted,  according  to  the  nature  of  the  subject. 

2175.  The  several  steps  taken  in  committee,  as  weU  as  in  the 
house,  are,  in  strictness  required  to  be  the  subject  of  motions  regu- 
larly made  and  seconded  by  the  members  of  the  committee.  But, 
in  practice,  the  formal  proceedings  are  usually  suggested  by  the 
chairman,  and  motions  are  not  seconded  at  aU. 

2176.  The  first  motion,  in  the  regular  com-se  of  proceeding, 
which,  however,  is  suggested  by  the  chairman,  on  taking  the  chair, 
is,  that  the  bill  be  read  a  first  time ;  which  being  agreed  to,  and 
the  bill  read  accordingly  (which  is  done  by  the  assistant  clerk  of 
the  house,  who  acts  as  clerk  of  the  committee)  the  next  step  in 
regular  course  is,  that  the  bill  be  read  a  second  time,  paragraph 
by  paragraph.  If  this  motion  is  affirmed,  the  biU  is  then  to  be 
read  in  that  manner. 

2177.  The  first  or  introductory  paragraph,  namely,  the  preamble, 
is  the  first  in  order  to  be  considered ;  but,  as  in  public  bills,  the 
preamble  is  intended  to  be  a  summary  of  the  reasons  which  induce 
the  legislature  to  pass  the  bill,  and  which,  consequently,  cannot  be 
truly  or  adequately  set  forth,  until  the  provisions  of  the  bill  are 
settled ;  it  is  usual  to  postpone  the  second  reading  and  considera- 
tion of  the  preanobble,  until  the  clauses  of  the  bill  have  been  gone 
through  with. 

2178.  The  preamble  being  postponed,  the  chairman  proceeds  to 
call  out  the  clauses,  each  by  itself,  in  the  order  in  which  they  stand 
arranged,  together  with  the  short  marginal  note,  if  there  be  any, 
attached  to  and  explanatory  of  the  contents  of  each.  A  clause 
may  also  be  postponed,  if  necessary,  as  weU  as  the  preamble,  either 
generally,  that  is,  until  after  all  the  others  have  been  considered,  or 
until  after  some  other  clause  has  been  considered,^  provided  it  be 
done  before  the  clause  has  been  amended  ;  but,  where  the  preamble 
and  also  a  clause  or  clauses  are  postponed,  the  latter  are  to  be  first 

»  Comm.  Jour.  LXXXVI.  143. 


OhAP.  XL]  COMMITMENT    OF   BILL.  849 

considered,  in  the  order  in  which  they  stand  postponed,  and  after- 
wards the  preamble.! 

2179.  If  no  amendment  is  offered  to  any  part  of  a  clause,  the 
chairman  puts  a  question,  either  of  himself,  or  on  motion,  "  that 
this  clause  stand  part  of  the  bill ;  "  which  being  decided,  either  in 
the  affirmative  or  negative,  the  chairman  proceeds  to  the  next  clause. 
When  an  amendment  is  proposed,  the  chairman  states  the  line  in 
which  the  alteration  is  to  be  made,  and  puts  the  cpiestion  in  the 
ordinary  form.  The  subject  of  amendments,  having  been  already 
considered  at  length,  need  not  be  particularly  adverted  to  in  this 
place. 

2180.  As  it  is  a  rule  in  amendments,  that  a  precedent  clause  or 
line  cannot  be  amended  after  a  subsequent  clause  or  line  has  been 
amended,  —  that  is,  that  amendments  must  be  made  in  the  order  of 
the  clauses  and  lines,  —  members  who  have  amendments  to  pro- 
pose in  committee  must  carefully  attend  to  the  progress  of  the  bill, 
and  move  their  amendments  at  the  proper  time,  or  otherwise  they 
will  be  precluded  from  moving  them  altogether.  If  an  amendment 
is  already  moved  to  the  latter  part  of  the  clause,  when  it  is  desired 
to  propose  one  in  an  earlier  part  of  the  same  clause,  the  course  is 
to  have  the  pending  motion  withdrawn,  in  order  to  give  an  oppor- 
tunity for  moving  the  amendment  in  question.  When  the  latter  is 
disposed  of,  the  former  may  be  again  moved.^ 

2181.  When  a  clause  has  been  amended,  the  proper  question  to 
be  put  is,  "  that  this  clause  as  amended  stand  part  of  the  bUl." 
When  the  clauses  have  thus  been  gone  through  with,  in  regular 
course,  the  postponed  clauses  are  to  be  pi-oceeded  with,  in  like 
manner,  in  their  order,  —  then  any  additional  matters  referred  to 
the  committee  by  way  of  instruction,  —  and,  lastly,  additional 
clauses  moved  in  the  committee."  ^ 

2182.  The  schedules  may  be  considered  in  connection  with  the 
clauses  to  which  they  refer,  if  they  refer  to  particular  clauses,  or 
they  may  be  considered  in  the  order  in  which  they  stand,  and 
treated  as  clauses,  after  the  clauses  have  been  gone  through  with. 
Postponed  clauses,  (that  is,  those  which  are  postponed  generall}^) 
may,  if  necessary,  be  taken  up  before  other  clauses  have  been  con- 
sidered.^ When  all  the  clauses  and  schedules  have  been  considered, 
and  all  the  amendments  made,  which  the  committee  see  fit,  or  is 


»  Comm.  Jour.  LXXXVTIL  366,  372,  378,         »  Comm.  Jour.  LXXXVH.  99,  101. 
?82,  405.  *  Comm.  Jour.  LXXXVIL  126,  160 

»  Comif.  Jour.  XLVL  176. 


850  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

authorized  by  insti-uction  to  make,  the  preamble  which  had  been 
postponed  is  considered,  and,  if  necessary,  amended,  so  as  to  con- 
form to  amendments  made  in  the  bill ;  and  the  chairman  then  puts 
the  question,  "that  this  be  the  preamble  of  the  bill,"  which  he 
thereupon  reads  to  the  committee. 

2183.  Blanks  left  in  a  bill  are  filled  up  in  the  order  in  which  they 
occur.  The  mode  of  filhng  them  is  different  from  the  ordinary 
mode  of  amendment.  Every  member,  who  has  a  proposition  to 
offer  for  filling  a  blank,  makes  his  proposal  accordingly ;  and,  when 
all  th^*  different  propositions  are  before  the  committee,  they  are  put 
to  the  question,  in  the  order  in  which  they  are  made,  until  one  of 
them  is  adopted. 

2184.  This  order  admits  of  an  exception,  in  regard  to  sums  and 
times.  If  a  blank  is  to  be  filled  with  a  sum,  and  several  sums  are 
proposed,  the»  lowest  is  to  be  first  put  to  the  question,  the  next 
lowest  afterwards,  and  so  on  until  a  sum  is  agi-eed  upon.  If  the 
blank  is  to  be  filled  with  a  time,  and  several  are  named,  the 
furthest  off  is  to  be  put  first  to  the  question,  the  next  furthest  after- 
wards, and  so  on  until  one  is  adopted.  This  rule  applies  not  only 
where  blanks  are  left,  but  also  where  they  are  made  or  supposed, 
that  is,  to  the  insertion  or  addition  of  sums  or  times  in  the  usual 
form  of  amendments ;  as,  for  example,  where  it  was  proposed  to 
amend  a  clause  by  the  insertion  of  a  proviso,  that  not  more  than  a 
specified  sum  should  be  expended  in  virtue  of  its  provisions.^  But, 
where  times  and  sums  are  aheady  inserted  in  a  biU,  amendments 
are  moved  and  made  in  the  usual  manner. 

2185.  Every  description  of  amendment  may  be  made  by  the 
committee  ;  clauses  and  schedules  may  be  added  or  omitted,  or  sub- 
stituted one  for  another,  or  divided  into  two  or  more,  or  united 
together;  paragraphs  may  be  added  or  omitted,  or  left  out  and 
others  inserted ;  and  verbal  alterations  may  be  made  in  every  part 
of  the  bill,  whether  the  preamble,  the  clauses,  or  the  schedules.^ 
The  only  limit  to  the  power  of  the  committee,  as  to  amendments, 

1  Comm.  Jour.  LXXXIV.  339.  referred  to  it,  which  consisted  of  but  a  single 

2  In  the  house  of  representatives  in  the  con-  section,  refused  to  receive  the  report,  on  the 
gress  of  the  United  States  committees  of  tlie  groutid,  that  a  committee  of  the  whole  had 
whole  sometimes  avail  themselves  of  the  form  no  right  to  destroy  a  bill.  J.  of  U.  IV.  444. 
of  an  amendment  to  express  an  opinion  hos-  In  the  same  body,  it  is  now  the  common  prac- 
tile  to  the  bill  referred  to  them,  as  where  they  tice  for  committees  of  the  whole,  besides  re- 
recommend  to  amend  a  bill  by  striking  out  the  porting  on  a  bill,  to  recommend  that  it  do  or 
enacting  clause,  or  the  most  important  sec-  do  not  pass.  All  reports  of  this  kind,  though 
tions ;  yet  5Ir.  Speaker  Cheves,  on  one  occa-  generally  sanctioned  by  the  house,  are  irregu- 
8ion,  in  1814,  where  a  committee  of  the  whole  lar  and  unauthorized. 

recommended   to  strike  out  the  entire    bill 


Chap.  XL]  commitment  of  bill.  851 

IS,  that  they  must  be  within  the  title  of  the  bill,  or  within  the  special 
powers  conferred  upon  the  committee  by  instructions  from  the 
house.  In  the  house  of  commons,  the  title  of  the  bill,  which  is 
itself  a  specification  of  the  authority  of  the  committee,  is  not  within 
the  power  of  the  committee  to  amend  ;  but  is  reserved  for  the  house 
after  all  the  amendments  have  been  made  to  the  biU  in  all  its 
stages. 

2186.  When  the  committee,  in  pursuance  of  instructions,  unites 
two  bills  into  one,  the  title  of  the  new  bill  is  composed  of  the  titles 
of  the  two  put  together ;  when  one  bill  is  divided  into  two,  that 
part  of  the  title,  which  belongs  to  the  subject  of  each,  is  appropri- 
ated to  it ;  the  committee  not  being  authorized  in  these,  any  more 
than  in  other  cases,  to  change  the  title. 

2187.  When  it  is  proposed  to  add  a  clause  to  the  bill,  four  ques- 
tions are  necessary,  namely :  that  the  clause  be  brought  up  ;  ^  that 
it  be  read  a  first  time  ;  that  it  be  read  a  second  i^jme ;  ^  and  that  it 
be  added  to  the  bill.  When  a  proposed  clause  has  been  brought 
up  and  read,'^  it  is  then  open  to  amendment,  in  the  same^anner,  as 
if  it  had  been  a  part  of  the  bill  originally.  The  last  question  is, 
that  the  clause,  or  the  clause  as  amended,  be  added  to  the  bill. 

2188.  If  it  is  desired  to  take  the  sense  of  the  committee  on 
retaining  an  entire  clause,  before  proceeding  to  amend  it,  —  the 
ordinary  course  being  first  to  go  through  the  clause  and  amend  it, 
and  then  to  put  a  question  whether  it  shall  stand  part  of  the  bill, — 
this^may  be  effected  by  moving  to  leave  out  the  entire  clause,  and 
putting  the  question  as  on  an  amendment  to  leave  out  the  enacting 
and  tsvo  or  three  of  the  introductory  words  of  the  clause.  K  the 
words  are  left  out,  the  clause  is  as  cfTectually  negatived,  as  it  would 
be,  on  the  question  that  it  stand  part  of  the  bUl ;  if  they  are  retained, 
the  committee  may  then  proceed  to  amend  the  residue  of  the 
clause.'' 

2189.  When  it  is  desired  to  substitute  a  new  clause  for  one  in 
the  bill,  the  course  is,  to  move  to  leave  out  all  after  the  enacting 
words  of  the  original  clause,  for  the  purpose  of  inserting  the  words 
of  the  new  one.^ 

2190.  If  an  amendment  is  moved,  which  is  objected  to,  as  not 
being  within  the  title,  the  title  is  first  read  and  the  chairman  there- 
upon states  his  opinion,  whether  the  objection  is  or  is  not  well 

'  Comm.  Jour.  XXXVII.  422.  *  Comm.  Jour.  LXXXVII.  544. 

»  Comm.  Jour.  XXX VL  831.  »  Comm.  Journal,   LXXXV.   619;     Same 

•  Comm.  Jour.  LXXXIX.  621,  548.  LXXXVI.  808. 


852  LEaiSLATIVE   ASSEMBLIES.  [PaRT    VIIL 

founded ;  and,  if  his  opinion  is  not  acquiesced  in,  a  motion  may  be 
made  and  the  question  put,  to  take  the  sense  of  the  committee  on 
the  point.  The  question  is  to  be  put  in  the  form  in  which  the 
chairman's  opinion  is  expressed;  thus  if  his  opinion  is  that  the 
amendment  is  not  within  the  title,  the  question  is  put  that  it  is  not 
within  the  title.  These  proceedings  supersede,  for  the  time  being, 
the  motion  to  amend,  and  dispose  of  it,  if  the  sense  of  the  commit- 
tee is,  that  it  is  not  within  the  title.^ 

2191.  According  to  the  practice  in  this  country  the  chairman  of 
a  committee  of  the  whole,  like  the  speaker  in  the  house,  decides  aU 
questions  of  order,  in  the  jB.rst  instance,  subject  of  course,  to  an 
appeal  to  the  committee. 

2192.  The  committee  on  a  bill  having  no  other  authority,  in 
point  of  form,  but  to  amend  it,  or  to  approve  of  it  as  it  stands,  their 
report  always  is,  that  they  have  gone  through  with  the  bill,  and 
have  made  some  amendments  thereto,  or  that  they  report  it  with- 
out amendment ;  and  this  is  the  form  of  the  report,  though  various 
other  matters  have  been  referred  to  the  committee  by  way  of  in- 
struction, to  be  considered  in  connection  with  the  bill.  If  they 
have  been  authorized,  in  their  discretion,  to  receive  a  clause,  or  to 
make  provision  in  the  bill,  for  a  particular  purpose,  and  have  seen 
fit  to  do  so,  the  execution  of  the  authority  appears  in  the  form  of 
an  amendment.  If  they  do  not  see  fit  to  exercise  it,  they  make  no 
report  on  the  subject.  K  a  committee  is  authorized  or  directed,  by 
way  of  instruction,  to  hear  counsel,  to  turn  one  bill  into  two,^  or 
two  bills  into  one,  or  to  do  any  other  act  of  a  similar  nature,  they 
inform  the  house,  in  their  report,  that  they  have  complied  with  such 
instructions. 

2193.  If  the  committee  should  be  unable  to  go  through  the  bill 
at  one  sitting,  the  course  is  to  report  progress,  and  ask  leave  to  sit 
again.  When  the  bUl  has  been  fuUy  considered  in  the  committee 
and  all  the  amendments  made,  which  the  committee  think  proper 
to  make,  a  motion  is  made  and  the  question  put,  that  the  chair- 
man report  the  bill,  or  the  biU  with  the  amendments,  to  the  house ; 
which  being  agreed  to,  the  chairman  leaves  the  chair  of  the  com- 
mittee, and  the  speaker  resumes  that  of  the  house.  The  chairman 
then  approaches  the  steps  of  the  speaker's  chair,  and  reports,  or 
rather  informs  the  house  of  the  proceedings  of  the  committee. 
Although  the  committee  on  a  bill  is  not  authorized  to  decide  upon 
its  merits,  yet  if  the  opinion  of  the  committee  is  against  the  bill,  it 

1  Comm.  Jour.  LXXXVII.  560,  561.  «  J.  of  H.  24th  Cong.  1st  Sess.  105). 


Chap.  XL]  commitment  of  bill.  953 

it  is  not  unusual  to  report  against  it  indirectly,  by  rising  wiihout 
making  any  report.  When  this  mode  of  proceeding  is  adopted, 
the  progress  of  the  bill  is  as  effectually  arrested,  until  the  commit- 
tee is  revived  by  the  order  of  the  house,  as  if  a  negative  had  been 
put  upon  any  of  the  motions  for  forwarding  the  bill  in  its  regular 
course. 

2194.  When  a  bill  is  reported  with  amendments,  the  chairman 
informs  the  house,  that  the  comniitte(!  has  gone  through  the  bill, 
and  has  made  an  amendment,  or  several  amendments,  thereunto, 
whic-h  they  have  directed  him  to  report,  when  the  house  will  please 
to  receive  the  same.  The  next  proceeding  is  for  the  house  to  fix 
upon  a  time  for  receiving  the  report ;  which  may  be  done  either 
at  that  time,  or  afterwards.  If  the  house  proceeds  then,  or  whenever 
it  proceeds,  to  fix  upon  a  time  for  receiving  the  report,  it  may  be 
moved,  either  that  the  report  be  now  received,  or  that  it  be  received 
on  some  ftiture  day ;  which  motions  may  be  proceeded  with  and 
amended,  in  the  manner  already  described.^  In  the  house  of  lords, 
there  is  a  standing  order  that  no  report  shall  be  received  from  a  com- 
mittee of  the  whole  on  the  same  day  the  committee  goes  through 
the  bill,  when  any  amendments  are  made  by  the  committee.'-^ 

2195.  If  no  amendments  have  been  made  by  the  committee,  the 
chairman  informs  the  house,  that  the  committee  has  gone  through 
the  bill,  and  has  directed  him  to  report  the  same  without  amend- 
ment ;  but  he  does  not  add,  as  he  does  where  amendments  have 
been  made,  that  he  is  dnected  to  make  the  report,  when  the  house 
will  please  to  receive  the  same ;  and,  if  no  objection  is  made,  he 
makes  the  report  immediately.  K  objection  is  made,  or  there  is 
any  good  reason  for  deferring  the  report,  a  time  may  be  fixed  for 
receiving  it,  as  in  other  cases ;  thus,  when  the  chairman  informed 
the  house,  that,  in  pursuance  of  the  instruction  of  the  house,  the 
committee  had  turned  the  bill  into  two  bills,  but  had  made  no 
other  amendment  therein,  than  was  necessary  for  that  piupose,  the 
house  directed  the  report  to  be  made  on  a  future  day.-^ 

2196.  When  a  committee  has  been  authorized  or  directed  by  an 
instruction  from  the  house,  to  divide  a  bill  into  two  or  more,  the 
chairman  informs  the  house,  that  the  committee,  pursuant  to  the 
power  given  them,  have  divided  the  bill  accordingly ;  and  he  then 
reports  upon  each  of  the  bills  separately.*     So,  where  two  bills 

>  Comm.  Jour.  XLVU.  817;  Same,  XLIX.         »  Comm.  Jour.  LV.  730,  754. 
811.  «  Coram.  Jour.  LIL  90,  97. 

«  Mav,  360. 

72 


I 
854  LEGISLATIVE  ASSEMBLIES.  [PaRT  VIII. 

have  been  referred  to  the  same  committee,  with  an  instruction  to 
make  them  into  one,  which  has  been  done,  the  chairman  informs 
the  house,  that  the  committee,  pursuant  to  the  power  or  insti-uction 
given  them,  has  united  the  two  bills  into  one,  which  is  reported 
accordingly  in  the  usual  manner.^ 

2197.  In  going  through  and  amending  a  bill,  and  this  is  even 
the  case  with  amendments  made  in  pursuance  of  mandatory  instruc- 
tions, a  committee  does  not  insert  the  amendments,  which  it  agrees 
upon,  in  the  bill  itself,  not  even  such  formal  amendments  as  become 
necessary  in  consequence  of  the  making  of  two  bills  into  one,  or 
dividing  one  into  two  or  more,'^  nor  when  they  are  for  the  purpose 
of  filling  a  blank.''  The  amendments  are  all  set  down  in  a  paper 
by  themselves,  containing  references  to  the  line,  words,  etc.  where 
the  amendments  are  to  be  inserted  or  added,  and  so  reported  to  the 
housC^  The  amendments  of  the  committee,  whether  consisting  of 
amendments  properly  so  called,  or  of  additions  and  provisos,  are  all 
to  be  set  down  in  the  schedule  of  amendments,  in  the  order  in 
which  they  occur  in  the  bill,  without  regard  to  the  order  in  which 
they  are  made. 

2198.  The  proceedings  in  a  select  committee  are  substantially 
the  same  as  in  a  committee  of  the  whole ;  differing  only  so  far  as 
results  from  the  different  constitution  of  the  two  sorts  of  commit- 
tees. 

*  Comm.  Jour.  XXX.  832,  834,  837.  striking  out  one  of  the  sections,  that  section, 

2  Coram.  Jour.  LV.  730,  754.  being  first  variously  amended,  is  then  ordered 

3  Comm.  Jour.  XLV^L  578.  to  be  strucic  out  on  the  proposition  originally 

*  This  principle,  in  connection  with  the  submitted.  The  amendments  first  adopted 
rule  relating  to  amendments,  that  the  friends  are  not  inserted  in  the  bill,  and  do  not  appear 
of  a  paragi-aph,  which  it  is  proposed  to  strike  in  the  report  of  the  committee,  which  only 
out,  have  a  right  to  submit  amendments  to  it,  recommends  that  the  section  be  struck  out. 
with  a  view  to  making  it  as  perfect  as  possi-  If  the  latter  is  rejected  by  the  house,  tlie  sec- 
ble,  before  the  question  is  taken  on  striking  tion  as  unamended  stands  on  the  report  of  the 
out,  sometimes  leads  to  much  inconvenience  committee ;  and  thus  the  amendments  made 
and  embarrassment.  On  a  proposition  in  a  in  committee  to  the  section  in  question,  do 
committee  of  the  whole,  to  amend  a  bill  by  not  appear  at  all.    Cong.  Globe,  XXIII.  166. 


Chap.  XII.]  report  on  bill.  855 


CHAPTER     TWELFTH. 

OF  THE  REPORT  OF  THE  COiMMITTEE,  AND  PROCEEDINGS  THEREON. 

2199.  When  a  day  has  been  appoiuled  for  receiving  the  report, 
the  first  proceeding  is  the  reading  on  that  day  of  the  order  of  the 
day  for  receiving  the  report.  A  motion  then  follows,  that  the  report 
be  now  received,  or  that  it  be  received  at  some  futm-e  time,^  on 
which  motions  amendments  may  be  moved  as  already  stated. 
When  the  report  is  to  be  received,  whether  immediately  on  the 
house  being  resumed,  or  on  a  subsequent  day  appointed  for  the 
purpose,  the  chairman,  reading  the  report  in  his  place,  reports  the 
amendments  which  the  committee  have  made  to  the  bill,  and  which 
they  have  directed  to  be  reported  to  the  house.  He  then  appears 
with  the  bill  and  report  at  the  bar,  and,  on  being  called  upon  by  the 
speaker,-  states  that  he  has  a  report,  and  thereupon  moves  that  it  be 
now  brought  up.-'  On  this  motion,  an  amendment  may  be  moved 
to  leave  out  now,  and  insert  some  other  time.'*  If  the  motion  to 
bring  up  the  report  is  decided  in  the  affirmative,  the  chanman  de- 
livers in  the  bill  with  the  amendments  at  the  clerk's  table.  If  there 
are  no  amendments,  the  chairman  goes  through  with  the  same  cere- 
mony, except  that  no  question  is  made  on  bringing  up  the  report, 
and  the  bill  is  at  once  delivered  in  at  the  clerk's  table.'^ 

2200.  When  a  bill  is  reported  without  amendment,  and  is  there- 
upon delivered  in  at  the  clerk's  table,  no  further  proceeding  takes 
place  upon  it,  stiictly  speaking,  as  a  report ;  the  next  step  is  the 
engi-ossment  and  the  third  reading,  if  the  bill  is  pending  in  the 
house  in  which  it  originated,  or  the  tliird  reading  merely,  if  it  has 
passed  in  the  other  house,  and  is  consequently  ahready  engrossed. 
The  proceedings  on  the  report  of  the  committee,  therefore,  relate 
only  to  bills  which  are  reported  with  amendments. 

2201.  The  report  having  been  brought  up,  the  next  step  in  the 
regular  course  of  proceedings  is,  that  a  motion  is  to  be  made,  and 
a  question  put,  that  the  report  be  now  read ;  which  being  agreed  to, 
and  the  report  read,  or  supposed  to  be  read,*^  the  next  step  is  a 
moiion,  that  the  report,  that  is,  the  amendments,  be  read  a  second 
time,  one  by  one.     If  this  motion  is  decided  in  the  affirmative,  the 

1  Comm.  .Tour.  XXXVII.  736.  *  Lords'  Jour.  LXV.  531. 

»  M;iv,  282.  "  May,  282,  (1st  ed.). 

«  Comm.  Jour.  XXXYH.  852.  •  May,  282,  (1st  ed.). 


856  LEGISLATIVE   ASSEMBLIES.  [PaRT  VITl 

amendments  of  the  committee  are  then  read  a  second  time,  sep- 
arately, in  com-se,^  and  a  motion  made,  and  a  question  put  on  each, 
that  it  be  agreed  to.  The  amendments  reported  by  Ihe  committee 
may  also  be  amended;  which,  of  com-se,  must  take  place  before 
they  are  agreed  to.  When  the  amendments  of  the  committee  have 
been  considered,  it  is  then  in  order  to  offer  new  clauses  to  be  added 
to  the  bill ;  after  which,  amendments  may  be  made  to  other  parts 
of  the  bill.  The  proceedings  now  being  in  the  house,  there  is  no 
restriction  upon  the  clauses  and  amendments  that  may  be  offered, 
as  there  is  in  the  committee,  that  they  must  be  within  the  title. 

2202.  AVhen  a  member  offers  a  clause  on  the  report,  that  is,  after 
the  report  has  been  considered,  four  motions  are  necessary,  namely, 
that  the  clause  be  brought  up  ;  that  it  be  read  a  first  time  ;  that  it 
be  read  a  second  .  time  ;  and,  that  it  be  made  part  of  the  bill. 
Clauses  thus  offered  may  be  amended,  in  the  same  manner,  as  if 
reported  by  the  committee.  The  last  motion,  in  that  case,  is,  that 
the  clause,  as  amended,  be  made  part  of  the  bill.  If  any  new 
clauses  are  proposed,  containing  provisions,  which,  by  the  rules  of 
the  house,  are  first  to  be  considered  in  a  committee  of  the  whole,  — 
as,  for  example,  which  contain  rates,  penalties,,  etc.,  —  the  course 
of  proceedings  is,  for  the  house  immediately  to  resolve  itself  into 
the  committee,  for  the  purpose  of  considering  them,  and  to  agree 
to  them  on  the  report.  Clauses  should  be  offered  by  way  of  amend- 
ment, before  any  amendments  are  made  to  the  bill ;  because  the 
addition  of  a  new  clause  may  render  it  necessary  to  introduce 
am  mdments  in  other  parts  of  the  bill ;  and  all  the  clauses  should 
therefore  be  under  consideration  before  amendments  are  admitted.^ 

2203.  Whatever  other  matters  may  be  especially  referred  to  the 
corrfmittee,  whether  of  the  whole  house  or  select,  or  which  it  may 
undertake  to  report,  the  report  upon  the  bill  is  always  the  same, 
namely,  with  or  without  amendment.  If  the  bill  has  abeady  been 
in  the  hands  of  a  committee,  either  select  or  of  the  whole,  which 
has  reported  it  with  amendments,  the  report,  with  such  amendments 
of  its  own  as  it  pleases,  is,  that  the  committee  agrees  or  disagj-ees 
with  the  amendments  of  the  first  committee,  or  that  the  committee 
agrees  to  the  same  wdth  amendments.  If  the  bill,  in  the  jiidgment 
of  the  committee,  ought  or  ought  not  to  pass,  the  committee  some- 
times reports  a  recommendation  that  the  bill  pass,  or  that  it  be 
rejected.  In  this  case,  the  committee's  report  may  or  may  not, 
according  to  its  nature,  requhe  the  action  of  the  house  to  agree  to 

1  Comm.  Jour.  LIX.  163,  347.  «  May,  364. 


Chap.  XII.]  report  on  bill.  857 

it ;  but  it  docs  not  stand,  or  obstruct  the  progress  of  the  bill,  which 
goes  on  notwithstanding,  and  upon  which  it  has  merely  Ihe  efrect 
of  so  much  said  in  argument.  Sometimes  the  committee,  finding 
the  amendui(!nts  necessary  to  be  adopted,  very  numerous,  and 
merely  formal,  or  for  other  good  causes,  reports  the  same  bill  in  a 
new  draft,  embodying  all  the  amendments,  and  denominated  an 
amendatory  bill.  This  kind  of  bill  is  received  as  the  report  of  the 
committee,  instead  of  the  bill  referred  to  it,  and  passes  through  all 
the  regular  stages  of  a  bill  originating  in  any  other  manner. 

2204.  When  a  report  has  been  brought  up  and  read,  the  further 
consideration  of  it  may  be  deferred  to  a  future  time,  and  so  from 
time  to  time,  as  may  be  convenient,  either  before  or  after  it  has 
been  in  part  considered,  until  the  consideration  of  it  has  been  com- 
pleted. When  a  report  is  thus  deferred,  it  becomes  an  order  of  the 
day  for  the  day  assigned ;  and  the  proceedings  upon  it,  on  that 
day,  are  similar  to  what  take  place  on  the  report,  when  it  is  taken 
into  consideration,  and  gone  through  with  on  being  made. 

2205.  When  a  bill  has  been  reported  with  amendments,  and  the 
consideration  thereof  deferred,  it  is  customary  to  have  the  bill  re- 
printed in  the  mean  time  ;  the  practice  of  both  houses  being  to  rely 
more  upon  a  reprint  of  the  bill,  for  a  knowledge  of  the  amend- 
ments, than  upon  any  proceedings  in  the  house.^ 

2206.  It  is  a  frequent  and  usual  proceeding,  after  a  bill  has  been 
committed  and  reported,  to  reconsider  it  again  in  committee;  for 
which  purpose  it  is  necessary  that  the  bill  should  be  recommitted. 
A  recommitment  may  be  either  to  the  same  committee,  if  the  orig- 
inal committee  was  a  select  one,  or  to  a  different  committee,  or  to 
a  committee  of  the  whole  house ;  and,  if  the  committee  was  orig- 
inally of  the  whole  house,  the .  recommitment  maybe  either  *to  a 
committee  of  the  whole,  or  to  a  select  committee. 

2207.  The  motions  for  recommitment  are  precisely  the  same  as 
for  commitment.  This  proceeding  may  take  place  as  often  as  the 
house  thinks  fit;  and,  it  is  not  uncommon  for  bills  to  be  reconsid- 
ered in  committee  several  times,  in  consequence  of  repeated  recom- 
mitments.2  A  recommitment  may  take  place  at  any  stage  of  the 
proceedings,  after  the  report  of  the  committee  has  been  brought  up, 
and  before  a  subsequent  stage  has  been  taken ;  but,  if  a  bill  has 
been  merely  ordered  to  a  third  reading,  and  has  not  yet  been  read 
the  third  time,  it  may,  notwithstanding,  be  recommitted,  the  ordei 
for  the  third  reading  being  first  discharged  for  the  purpose.^ 

1  May,  360.  »  Coram.  Jour.  LXXXVIL  303. 

«  Jiftv,  361. 

72* 


858  LEGISLATIVE  ASSEMBLIES.  [PaRT  Vlll. 

2208.  The  proceedings  in  the  committee,  on  a  recommitment, 
depend  upon  the  manner  in  which  the  recommitment  takes  place. 
If  the  recommitment  is  general,  that  is,  without  limitation  or 
restriction,  the  entire  bill  is  again  to  be  considered  in  the  commit- 
tee. If  the  recommitment  is  special,  that  is,  as  to  certain  amend- 
ments proposed,  or  clauses  offered  on  the  report,  or  with  instractions 
to  make  some  particular  or  additional  provision,  the  proceedings  in 
the  committee  must  be  confined  to  the  special  purpose  of  the  re- 
commit ment.  K  the  bill  has  been  akeady  in  the  hands  of  a  com- 
mittee, and  reported  upon  by  it,  with  amendments,  which  have  not 
yet  been  adopted  by  the  house,  the  new  conimitlee,  whatever  amend- 
ments of  its  own  it  may  report,  reports  its  agreement  or  disagree- 
ment, with  the  amendments  of  the  fii-st  committee,  or  its  agreement 
thereto  with  amendments.  The  proceedings,  in  making  the  report, 
and  on  the  report,  are  similar  to  those  already  described. 


CHAPTER    THIRTEENTH. 

OF   THE   ENGROSSMENT!   AND   THIRD   READING. 

2209.  When  the  proceedings  on  the  report  of  the  committee 
have  been  brought  to  a  close,  in  the  manner  ah-eady  described,  and 
also  when  a  biE  has  been  reported  without  amendment,  and  deliv- 
ered in  at  the  clerk's  table,  the  next  step  in  the  proceedings  is  the 
engrossment  of  the  bill,  preparatory  to  a  third  reading,  if  the  bill  is 
pending  in  the  house  in  which  it  originated,  or  the  thii-d  reading,  if 
the  bill  has  already  passed  in  the  other  house.^ 

2210.  The  motion,  that  the  bill,  or  the  bill  with  the  amendments, 
as  the  case  may  be,  be  engrossed,  may  be  made  immediately  upon 
the  conclusion  of  the  proceedings  on  the  report,  or  afterwards,  as 
may  be  convenient.  On  this  motion  the  merits  of  the  bill  may  be 
discussed ;  and,  if  it  is  negatived,  the  bill  is  lost ;  if  decided  in  the 
affirmaiive,  it  may  be  followed  up  by  a  motion  for  the  third  read- 

1  The  engrossment,  though  discontinued  in  practised  in  parliament  before  1849.     May, 

both  houses  of  the  British  parliament,  since  362,  363. 

the  year  1849,  is  one  of  the  regular  incidents  =  The  engrossment  and  third  reading  consti- 

of  parliamentary  proceedings,  and  still  prevails  tute,  ordinarily,  but  a  single  question.    Cong. 

BO  generally  in  otlier  legislative  assemblies,  Globe,  XIII.  414. 
that  it  is  described  in  this  chapter  as  it  was 


Chap.  XIII.]  engbossment  of  bill.  859 

ing  of  the  bill,  on  a  particular  day,  or  on  a  particular  day,  if  then 
engrossed ;  and  on  this  motion  the  merits  of  the  bill  may  in  like 
manner  be  again  discussed. 

2211.  The  bill,  as  it  has  thus  far  been  the  subject  of  proceeding, 
and  the  amendments  of  every  kind,  which  have  been  made  to  it, 
have  been  written  on  paper.  Having  undergone  all  the  changes  of 
form,  which  are  likely  to  be  proposed  and  adopted,  the  bill  is  now 
to  be  rewritten  on  a  more  permanent  material,  and  in  the  form  of  a 
clean  draft,  containing  all  the  amendments  in  their  proper  places. 
This  is  effected  by  the  en^-ossment,  "  which  is  no  more  than  to 
transcribe  the  bill  fairly  out  of  the  paper,  in  wliich  it  was  WTitten, 
into  parchment."  ^  The  several  pieces  of  parchment,  where  there 
is  more  than  one,  on  which  a  bill  is  written,  are  denominated  skins,^ 
or  presses  ]''^  and,  in  the  future  proceedings  on  the  bill,  these  terms 
serve  to  designate  the  different  parts  of  it,  for  the  purpose  of  mak- 
ing and  describing  amendments. 

2212.  The  style  of  writing,  in  which  bills  are  engrossed,  is  the 
old-fashioned  black-letter,  which  is  still  kept  up,  in  preference  to 
the  adoption  of  the  common  plain  round  hand,  on  the  ground, 
that  the  object  in  view  is  rather  to  preserve  an  uniform,  dm-able, 
and  correct  record  of  the  acts  of  the  legislatui-e,  which  shall  be  legi- 
ble at  a  distant  period,  with  ordinary  care,  than  merely  to  afford 
facility  for  reading  the  record  expeditiously ;  that  the  present  mode 
of  engrossment  gives  a  permanence  and  an  uniforirdty,  which  can- 
not be'  obtained  by  the  ordinary  mode  of  \\Titing;  and  that  the 
adoption  of  the  plain  round  hand  would  alFord  a  greater  facility  for 
falsifying,  by  interpolation,  or  otherwise,  than  the  use  of  the  en- 
grossing hand.'*  The  several  clauses  and  parts  of  the  bill  are  writ- 
•ten  close,  without  any  space  left  between  them,  and  only  on  one 
side  of  the  skin. 


1  D'Ewes,  18.  reasons  above  mentioned.    Comm.  Jour.  XCL 

2  Comm.  Jour.  X.  143.  447.    In  this  country,  bills  are  engi-osseJ  in 
'  Comm.  Jour.  X.  178.    At  the  time  when  the  common  plain  round  hand,  or  in  such 

engrossing;  was  first  practised,  parchment  was  other  equally  plain,  as  the  writer  pleases  to 

selected,   because  it   was  the  only  ordinary  adopt.     Whether  the  punctuation  ought  to  be 

writing  material  of  a  permanent  character,  considered  as  making  part  of  the  bill,  must 

At  the  present  day,  in  congress,  and  others  depend   entirely  upon   the   intention   of   the 

of  our   legislative   assemblies,   bills   are   en-  draftsman,  of  which  there  can   generally  be 

grossed  on  thick  and  strong  i)aper.    In  con-  little  or  no  doubt.     At  any  i-ate,  before  each 

gress  they  are  afterwards  enrolled  on  parch-  article  is  published  authoritatively,  the  punc- 

ment.  tuation  ought  to  be  revised.    Particular  direo- 

*  In  1836,  the  commons  proposed  to  discon-  tions  may  be  given  to  the  clerk  as  to  engross- 

tinue  the  mode  of  engrossing  in  black-letter,  ing,  as,  for  example,  in  regard  to  numbering 

and  to  substitute  therefor  a  plain  round  hand,  or  lettering  the  schedules.     J.  of   H.   29th 

The  lords  disagreed  to  the  proposition,  for  the  Cong.  1st  Sess.  1029. 


860  LEGISLATIVE    ASSEMBLIES.  [PaRT  VIll. 

2213.  In  both  houses,  it  is  a  branch  of  the  general  duties  of  the 
clerk  to  see  that  the  bills  are  properly  engrossed.^  But  this  duty, 
which  was  anciently  performed  by  the  clerk  himself,  or  his  servants 
out  of  the  house,  is  in  modern  times  executed  by  officers  specially 
appointed  for  the  purpose.  Li  the  house  of  lords,  the  engrossment 
is  confided  to  an  officer,  denominated  the  clerk  of  the  engrossments. 
In  the  commons,  in  which  much  the  greater  number  of  the  bdls 
originate,  the  engi'ossing  is  executed  in  the  engrossing  office,  and 
examined  in  what  is  called  the  public  bill  office,  the  officers  of 
which  are  immediately  responsible  for  the  correctness  with  which  it 
is  done.- 

2214.  The  order  for  the  engrossment  of  a  bill  is  sometimes  in 
the  simple  form,  that  the  bill  be  engrossed ;  sometimes  it  is  accom- 
panied by  an  order  for  the  third  reading ;  sometimes  for  the  third 
reading  on  a  particular  day ;  or  on  a  particular  day,  if  the  bill 
should  then  be  engrossed.  If  no  order  is  made,  as  to  the  time  for 
the  thh-d  reading,  it  may  take  place  as  soon  as  the  bill  is  engrossed ; 
if  the  time  has  been  fixed,  the  third  reading  is  an  order  of  the  day 
for  the  day  so  agreed  upon,  and  to  be  proceeded  with  accord- 
ingly. 

2215.  The  next  step  to  be  taken  after  the  engrossment,  or  after 

the  report,  or  proceedings  on  the  report,  of  a  bill  aheady  engrossed, 
is  the  third  reading.  If  a  bill  from  the  other  house  is  reported  from 
the  committee  without  amendment,  —  being  already  engrossed,  — 
it  may  be  read  a  third  time  immediately,  or  it  may  be  ordered  to 
be  read  a  third  time,  without  any  time  being  fixed  therefor,  or  the 
time  may  be  fixed  for  a  future  day.^  If  a  bill  from  the  other  house 
is  reported  from  the  committee  with  amendments,  the  same  proceed- 
ings may  take  place  upon  it  with  reference  to  a  third  reading,  at  the 
termination  of  the  proceedings  upon  the  report.  But,  in  the  latter 
case,  it  is  most  usual  to  take  another  day  for  the  third  reading. 

2216.  In  the  case  of  a  bill  originating  in  the  house  in  which  it  is 
pending,  the  time  for  the  third  reading  may  be  fixed  as  already 
remarked,  at  the  time  it  is  ordered  to  be  engrossed,  or  the  house 
may  wait  until  after  the  bill  is  engrossed,  and  then  proceed  to  read 
it  a  third  time,  at  once,  without  previously  fixing  any  time  therefor; 
or  a  time  may  be  fixed  for  the  purpose.  In  the  house  of  represent- 
atives of  the  United  States,  it  appears  to  be  the  custom  to  engross 
biUs  in  advance  of  their  being  ordered  to  be  engrossed :  and  if  a  bill 

1  Hackwcll   150  .  bill  hns  been  anticipated.    J.  of  SI.  408;  J. 

s  May,  285,  1st  cd.  of  II.  III.  1G9.     But  this  is  contrary  to  lliegen- 

»  The  time  fixed  for  the  third  reading  of  a     eral  rule.    Ante,  4 


Chap.  XI II.]  engrossment  of  bill.  861 

happens  to  be  thus  engrossed,  it  may  be  read  a  third  tirhe  imme- 
diately ;  otherwise  this  motion,  except  in  the  case  of  a  bill  from  the 
other  branch,  which  is  already  engrossed,  is  not  in  order  ;^  nor, 
without  a  suspension  of  the  rules  can  an  unengrossed  bill  be  read 
a  third  time.^ 

2217.  When  a  time  has  been  previously  fixed  for  the  third 
reading,  the  third  reading  becomes  an  order  of  the  day  for  ihe  day 
appointed,  and  is  proceeded  with  accordingly.  On  reading  the 
order,  a  motion  may  be  made  that  the  bill  be  now  read  the  third 
time,  upon  which  amendments  may  be  moved  with  a  view  to  post- 
pone the  third  reading  to  a  day  within  or  beyond  the  session  ;  or  a 
motion  may  be  made,  that  the  bill  be  read  the  third  time  on  a  future 
day  named,  on  which  amendments  may  be  moved,  for  the  purpose 
of  fixing  upon  a  different  day  or  for  the  purpose  of  presently  read- 
ing the  bill  the  third  time. 

2218.  When  the  house  has  determined,  that  the  biU  shall  now  be 
read  the  thnd  time,  it  is  then  forthwith  read  by  the  clerk,  with  the 
ceremonies  and  in  the  manner  already  mentioned  with  reference  to 
the  first  and.  second  readings.  If  the  bill  has  come  from  the  other 
house,  and  has  been  amended,  it  is  to  be  read  and  considered  as 
amended ;  because  that  is  the  form  in  which  it  has  received  the 
approbation  of  the  house  in  which  it  is  then  pending ;  although  the 
amendments  are  not  embodied  in  the  bill,  as  in  the  case  of  a  bill 
originating  in  that  house,  but  are  in  a  separate  and  distinct  form. 

2219.  When  a  bill  has  been  thus  read,  it  is  still  in  order,  though 
the  most  appropriate  stage  for  amendments  is  passed,  to  propose  ,  . 
amendments  to  any  part  of  it,  in  the  same  manner  as  in  committee,  / 
or  upon  the  report,  observing  the  same  order  of  proceeding.     If  the  ■  ^ 
bill  is  of  the  house  in  which  it  is  then  pending,  the  amendmentsj 
must  be  inserted  in  the  engrossment ;  if,  of  the  other  house,  theyi 
are  to  be  inserted  in  a  schedule  by  themselves  in  paper,  or  added  to, 
the   schedule   of  amendments   already   made.      Amendments   by 
inserting  or  adding,  or  by  leaving  out  words,  or  by  leaving  out  and 
inserting,  are  made  in  the  same  manner  after  the  third  reading,  as 
in  committee. 

2220.  In  regard  to  clauses,  that  is,  independent  propositions, 
containing  enacting  words,  whether  direct  or  m  the  form  of  pro- 
visos, and  whether  reported  as  such  by  the  committee  on  the  bill, 
or  moved  by  an  individual  member,  the  proceedings  are  analogous 

1  J.  of  H.  30th  Cong.  1st  Sess.  934;   Same,         «  J.  of  H.  30th  Cong.  1st  Sess  1209. 
82d  Cong.  1st  Sess.  302, 1036. 


862  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

to  the  proceedings  on  a  bill.  A  clause  being  offered,  the  first 
motion  thereupon  is,  that  it  be  brought  up  or  received ;  if  this  is 
agreed  to,  the  clause  is  read,  and  then  follows  a  motion  for  the 
second  reading ;  if  the  second  reading  is  ordered,  the  clause  is  read 
a  second  time  accordingly ;  it  is  then  ordered  to  be  engrossed  and 
read  a  thu-d  time,  on  motion,  in  the  same  manner ;  and,  lastly,  a 
motion  must  be  made  and  the  question  put,  when  it  has  been  read 
the  third  time,  that  it  be  made  part  of  the  bill  by  way  of  rider.^ 

2221.  If  a  clause  thus  offered  contains  blanks  which  require  to 
be  considered  in  a  committee  of  the  whole,  it  is  to  be  committed 
accordingly,  after  the  second  reading ;  to  be  considered  in  com- 
mittee and  reported;  the  report  received  and  considered;  the 
amendment  made  by  fiUing  the  blank  on  the  report  of  the  commit- 
tee ;  and  then  the  clause  read  a  third  time.  If  any  amendment  is 
necessary  to  be  made  to  a  clause,  other  than  such  as  must  first  be 
reported  upon  by  a  committee  of  the  whole,  the  proper  time  to 
make  it  is  after  the  second  reading,  or  on  the  report  of  the  clause  if 
it  is  committed,  and  before  the  third  reading.^ 

2222.  Clauses,  offered  as  above  mentioned  by  way  of  amend- 
ment to  a  bill  after  the  third  reading,  must  be  already  engrossed. 
If  adopted,  and  ordered  to  be  made  part  of  the  bill  as  riders,  they 
are  filed,  that  is,  tied,  to  the  bill,  in  the  same  manner  that  the  differ- 
ent presses  or  skins  are  attached  to  one  another,  whether  the  bill 
originated  in  the  house  in  which  it  is  then  pending  or  in  the  other. 

2223.  When  clauses  are  to  be  proposed,  whether  on  the  report 
of  the  committee,  or  on  the  third  reading,  they  are  to  be  offered 
before  any  amendments  are  made  to  the  bill ;  for  the  reason,  that 
the  addition  of  a  new  clause  may  render  it  necessary  to  introduce 
amendments  in  other  parts  of  the  bill ;  and,  consequently,  all  the 
clauses  which  are  to  be  added  should  be  brought  forward  before 
amendments  are  made.^ 

2224.  Amendments  of  a  bill  originating  in  the  house  in  which 
it  is  pending,  adopted  on  the  third  reading,  are  all  to  be  made  at 
the  table.  Amendments,  properly  so  called,  are  written  in,  or  in- 
terlined, or  struck  out  of  the  engrossment,  and  clauses  omitted  are 
cut  out,  and  clauses  added  are  filed  to  the  bill,  by  the  clerk  or  other 
proper  officer,  at  the  table.     Amendments  of  a  bill  originating  in 

1  See  J.  of  H.  IX.  228,  367.    It  is  now  pro-  "  Comm.    Jour.     XXXVI.    192 ;    Same, 

vided,  in  the  house  of  representatives  in  con-  XXXVIIL  1004;    Same,    XXXIX.   458.  503 

gress  by  a  rule,  that  "  No  amendment  by  way  1038 ;  Same,  LI.  764. 

of  ruler  shall  be  received  to  any  bill  on  its  ^  May,  364. 
third  reading." 


Chap.  XIIL]  engrossment  of  bill.  863 

the  other  house  are  to  be  set  down  in  a  paper  thereto  annexed,  ex- 
pressing in  what  line,  and  between  what  words,  the  amendments 
are  to  be  made,  which  is  to  be  returned  to  that  house  with  the  bill.^ 
Clauses  and  provisos  are  filed  to  the  bill,  in  the  manner  already 
mentioned.  • 

2225.  ir,  in  consequence  of  amendments  or  other  proceedings, 
on  or  after  the  engrossment  and  third  reading  of  a  bill,  it  becomes 
necessary  or  advisable,  the  house  may  order  it  to  be  rei-ngrossed. 

2226.  After  a  bill  has  been  ordered  to  be  read  a  third  time,  or 
has  been  read  a  third  time,  it  is  then  too  late  to  recommit  it  gen- 
erally,'- but  it  may  then,  nevertheless,  be  recommitted  for  some 
special  purpose,  as  to  receive  some  particular  clause  or  proviso,^  or 
for  the  purpose  of  being  divided  into  two  bills.*  When  a  bill,  after 
being  thus  recommitted  is  reported  to  the  house  and  again  taken 
up  for  consideration,  it  is  resumed  at  the  point  at  which  the  pro- 
ceedings upon  it  were  interrupted  by  the  recommitment. 

2227.  The  ancient  practice  of  engrossing  bills  on  parchment, 
which  had  previously  prevailed  time  out  of  mind  in  parliament,  was 
discontinued  in  1849,  in  virtue  of  the  following  standing  orders  \\  hich 
were  then  adopted  in  both  houses :  "  That  in  lieu  of  being  engrossed, 
every  bill  shall  be  printed  fair  immediately  after  it  shall  have  been 
passed  in  the  house  in  which  it  originated,  and  that  such  fair  printed 
bill  shall  be  sent  to  the  other  house,  as  the  bill  so  passed,  and  shall 
be  dealt  with  by  that  house,  and  its  officers,  in  the  same  manner  in 
which  engi'ossed  bills  are  now  dealt  with :  That  when  such  bill 
shall  have  passed  both  houses  of  parliament,  it  shall  be  fair  printed 
by  the  queen's  printer,  who  shall  furnish  a  fair  print  thereof  on 
vellum  to  the  house  of  lords,  before  the  royal  assent,  and  likewise  a 
duplicate  of  such  fair  print,  also  on  vellum  :  That  one  of  such  fair 
prints  of.  each  bill  shall  be  duly  authenticated  by  the  clerk  of  the 
parliaments''  or  other  proper  officer  of  the  house  of  lords,  as  the 
bill  to  which  both  houses  have  agreed :  That  the  royal  assent  shall 
be  indorsed  in  the  usual  form  on  such  fair  print,  so  authenticated, 
which  shall  be  deposited  in  the  record  tower  in  lieu  of  the  present 
engrossment."  By  the  adoption  of  this  system,  the  engrossment  is 
dispensed  with,  in  all  cases,  and  printing  substituted  in  its  place  ; 
the  change  being,  that  instead  of  a  fair  copy  written  on  parchment, 
previous  to  the  third  reading,  and  liable  to  be  amended  or  altered 

»  Hnckwell,  1G3.  » Jefferson's  Manual,  Sec.  XL.  J.  of  S.  V. 

» .lofferson's  Manual,  Sec   XL.     But  see  .1.      259;  J.  cif  H.  TX.  57. 
rfH.  IX.  270.  4  .T.  of  H.  VII.  88;  Same,  VIII.  159. 

*  That  is,  the  clerk  of  the  house  of  lords. 


864  LEGISLATIVE    ASSEMBLIES.  [PaRT  VIIL 

in  that  stage,  a  fair  copy  is  printed  on  paper,  after  the  bill  has  re 
ceived  amendments,  and  been  passed.     The  second  order  provides 
for  the  printing  of  a  fair  copy,  after  all  amendments  shall  have 
been  made  between  the  two  houses.^ 


CHAPTER  FOURTEENTH. 


OF  THE  PASSING. 


2228.  When  a  bill  has  been  read  a  third  time,  and  received 
such  additions  and  amendments,  as  the  house  may  see  fit  to  make 
to  it,  the  next  and  final  motion  is,  that  the  bill  do  pass.  This 
motion  may  be  deferred,  either  tacitly  by  no  order  being  made  with 
reference  to  it,  or  by  an  express  order  that  the  bill  lie  on  the  table 
until  a  certain  time ;  ^  but  the  general  practice  is  for  the  motion  to 
be  made  immediately  after  the  third  reading  and  the  proceedings,  if 
any,  thereupon.  As  a  bill  has  received  the  apparent  approbation  of 
the  house  both  as  to  its  principles  and  as  to  its  details,  previous  to 
the  question  for  passing,  it  is  extremely  rare,  that  any  objection  is 
made  to  this  motion  ;  but  it  may  nevertheless  be  opposed  and  de- 
bated, like  every  other,  and  instances  are  not  wanting,  in  which  it 
has  been  decided  in  the  negative.^ 

2229.  K,  on  this  motion,  the  house  resolves,  that  the  bill  do  pass 
it  only  remains  to  agree  upon  the  title.  In  the  house  of  commons, 
the  original  title  is  not  amended,  during  the  progress  of  the  bill ; 
but  is  left  to  be  amended,  if  necessary,  when  the  bill  ha§  passed. 
The  title  being  then  read  by  the  speaker,  and  a  question  put,  "  that 
this  be  the  title  of  the  bill,"  it  is  thereupon  amended,  on  motion,  if 
need  be,  so  as  to  make  it  conform  to  the  changes  which  have  taken 
place  in  the  bill  since  its  introduction.  The  change  of  title,  which 
occurs  when  one  bill  is  made  into  two,  or  two  into  one,  can  hardly 
be  regarded  as  an  exception  to  the  rule,  that  no  amendment  is  to  be 
made  in  the  title,  during  the  progress  of  the  bill ;  for,  in  the  first 
case,  the  title,  like  the  bill,  is  simply  divided  into  two,  and  in  the 
other  the  two  titles  are  only  put  together  into  one,  with  the  addi- 

»  May,  363.  »  Comm.  Jour.  LXXX.617 ;  Same,  LXXXIX. 

»  Comm.  Jour.  XH.  183.  487. 


Chap.  XV.]        amendments  between  the  houses.  865 

tion  in  the  former,  and  the  retrenchment  in  the  latter,  of  a  few  for- 
mal words.  In  the  house  of  lords,  the  practice  is  to  amend  the 
title,  whenever  any  alterations  in  the  bill  render  it  necessary ;  con- 
sequently, the  fixing  of  the  title  is  not  there,  as  in  the  other  house, 
left  until  the  cl,ose  of  the  proceedings.^ 

2230.  When  a  bill  passes  in  the  house  in  which  it  originated,  it 
is  authenticated  by  an  indorsement  or  certificate  thereon  by  the 
clerk,  and  transmitted  to  the  other  house  to  be  there  proceeded  upon 
in  the  same  manner.  When  it  passes  in  that  house,  it  is  there  au- 
thenticated in  a  similar  manner,  and  the  fact  communicated  to  the 
house  in  which  it  originated,  sometimes  with  and  sometimes  with- 
out the  bill  itself.  If  passed  with  amendments,  it  is  returned  to 
the  house  in  which  it  originated,  for  their  concurrence  in  the  amend- 
ments. The  communications  which  take  place  on  these  occasions, 
and  the  certificates  or  indorsements  by  which  the  proceedings  on 
bills  are  authenticated,  will  be  stated  and  explained  hereafter. 


CHAPTER    FIFTEENTH. 

OF  AMENDMENTS   BETWEEN   THE  TWO   HOUSES. 

2231.  BlUs  which  are  passed  in  one  house  and  sent  to  the  other 
are  sometimes  agreed  to  and  passed  in  the  latter,  precisely  in  the 
form  in  which  they  were  received.  In  that  case,  if  they  originated 
in  the  house  of  lords,  and  are  agreed  to  by  the  commons,  they  are 
returned  to  the  former  house  by  the  commons ;  if  they  originated 
in  the  commons,  and  are  agreed  to  by  the  lords,  they  remain  in  the 
latter  house,  and  the  commons  are  informed  of  the  agreement  by  a 
message.  The  proceedings  between  the  two  houses,  with  reference 
to  the  particular  bill,  are  thus  brought  to  a  close.  Bills  of  supply, 
which  always  originate  in  the  commons,  are  informally  returned  to 

'  It  does  not  appear  to  be  the  present  prac-  Jour.  LXXXVIII.  239.    In  onr  legislative  ns- 

tice,  to  make  a  record  on  the  journal  of  the  semblies,  the  practice  of  the  house  of  com- 

title  being  agreed  to,  or  of  the  title  of  the  bill  mons  prevails,  and  the  resolution,  adopting 

in  any  fonn,  unless  it  is  amended,  in  which  the  title,  whether  amended  or  not,  is  always 

case,  it  is  stated  as  follows:  Resolved,  that  the  entered  on  the  journal.     See   Cong.  Glob^ 

bill  do  pass;  and  that  the  title  be,  &c.  Comm.  XXIII.  749;  Same,  XXIV.  96. 

73 


666  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

that  branch,  after  being  passed  in  the  lords,  and  are  presented  to  the 
sovereign  by  the  speaker. 

2232.  It  frequently  happens,  however,  that  a  bill,  which  has 
passed  in  one  house,  is  not  agreed  to  by  the  other  in  precisely  the 
same  form,  but  only  with  certain  modifications  or  alterations,  wifh 
which  it  is  retui'ned  to  the  house  in  w^hich  it  originated.^  In  this 
case,  as  each  of  the  tsvo  houses  has  passed  the  biU,  in  a  different 
form,  there  is  not  as  yet,  strictly  speaking,  any  agreement,  or  only 
a  conditional  one  between  them  in  relation  to  it. 

2233.  When  a  biU  is  thus  passed  with  amendments,  it  is  re- 
turned to  the  house  in  which  it  originated,  with  a  message,  inform- 
ing that  house,  that  the  other  has  agreed  to  the  biU  with  an  amend- 
ment, or  with  certain  amendments,  to  which  it  desires  the  concur- 
rence of  the  former.  On  this  message  being  received  and  reported, 
the  house  may  suffer  the  bUl  to  remain  on  the  table  without  any 
order,  or  may  order  it  to  lie  there  till  a  more  convenient  time  for 
entering  upon  the  consideration  of  the  amendments ;  or  it  may 
order  the  amendments  to  be  taken  into  consideration  on  a  day 
named  ;  or  it  may  proceed  at  once  to  consider  them.  In  the  first 
case,  the  house  may  proceed  on  some  other  day,  either  to  consider 
the  amendments,  or  to  appoint  a  time  for  their  consideration ;  in 
the  second,  the  consideration  of  the  amendments  having  been  fixed 
for  a  day  named,  becomes  an  order  of  the  day  for  that  day,  and  is 
proceeded  with  accordingly. 

2234.  A  proceeding  which  may  take  place,  preliminary  to  the 
consideration  of  the  amendments,  is  to  refer  them  to  a  select  com- 
mittee, to  consider  and  report  what  it  shall  think  proper  to  offer  to 
the  house  thereupon.  When  this  course  is  taken,  the  committee 
reports  what  it  recommends  the  house  to  do  with  reference  to  each 
amendment,  as,  to  agi-ee,  disagree,  or  amend.  The  report  is  read 
for  the  information  of  the  house ;  and  the  amendments  are  then 
considered  and  proceeded  with  in  the  usual  manner ;  questions 
being  made  and  put  not  upon  agreeing  with  the  committee,  in  their 
report,  but  upon  agi'ceing,  &c.  with  the  amendments,'-^  according  to 
the  suggestions  of  the  committee,  if  those  suggestions  should  be 
agreeable  to  the  house. 

2235.  It  has  been  seen,  that  there  are  three  different  kinds  of 
modifications,  which  may  be  made  by  one  house  to  a  bill  passed 
by  the  other,  to  only  one  of  which,  in   a   strict   sense,  the   term 

1  Appendix,  XVI.  2  Comm.  Jour.  XXVII.  898,  903,  907. 


(yHAP.  XV.]  AMENDMENTS    BETWEEN    THE    HOUSES.  867 

amendment  is  applied ;  but,  in  the  proceedings  which  take  place 
between  the  two  houses,  with  reference  to  coming  to  an  agreement 
upon  them,  they  are  all  designated  by  the  general  term  amendment, 
and,  with  certain  exceptions,  which  will  be  presently  noticed,  are 
treated  in  the  same  manner. 

2236.  When  the  house  proceeds  to  consider  the  amendments, 
the  first  motion  is,  that  they  be  read;  this  being  agreed  to,  and  the 
amendments  read  in  course,  the  next  motion  is,  that  they  be  read 
a  second  time ;  if  this  motion  prevails,  the  amendments  are  then 
read  a  second  time,  and  separately  considered,  in  the  same  manner 
with  amendments  reported  by  a  committee.  AVhen  an  amendment 
has  been  read  the  second  time,  and  amended,  if  necessary,  or  such 
other  proceedings  have  taken  place  with  reference  to  it,  as  the  house 
may  think  proper,  the  final  motion  is  that  it  be  agreed  to.  Former- 
ly, it  appears  to  have  been  the  practice  in  both  houses,^  as  it  is  now 
in  the  lords,  to  read  amendments  three  times,  before  putting  the 
question  for  agreeing  to  them  ;  but,  at  the  present  day,  amendments 
properly  so  called,  are  only  twice  read  in  the  commons,  as  above 
stated,  and  engrossed  clauses  and  provisos  three  times.-  The  con- 
sideration of  a  particular  amendment  may  be  postponed,  or  an 
amendment  may  be  committed,  or  the  debate  upon  it  adjourned ; 
but  whatever  intermediate  proceedings  take  place,  the  result  is,  that 
the  house  agrees,  or  disagrees,  or  agrees  with  an  amendment,  or 
amendments,  to  each  of  the  amendments  of  the  other  house. 

2237.  If  the  amendments  are  agreed  to  by  the  house  in  which 
the  bill  originated,  the  other  house  is  informed  thereof  by  a  mes- 
sage, without  the  biU,  if  it  is  the  house  of  lords  which  last  passed 
the  bill,  and  accompanied  by  the  bill,  if  it  was  last  passed  by  the 
house  of  commons. 

2238.  If  the  amendments  agreed  to  consist  of  amendments 
properly  so  called,  in  paper,  they  are  immediately  made  by  the  clerk 
of  the  house  or  his  assistant,  in  the  bill  itself,  according  to  the  di- 
rections therefor  in  the  paper,  and  the  agreement  is  certified  on  the 
bill  itself,  and  not  on  the  paper  of  amendments.  If  the  amend- 
ments consist  of  additions  to  the  bill  in  parchment,  that  is,  clauses 
or  provisos  engrossed,  the  agreement  is  certified  both  on  the  bill 
itself,  and  on  the  engrossed  clauses  or  riders. 

2239.  When  the  amendments  are  disagreed  to,  if  no  further  pro- 
ceeding took  place,  the  bill  would  be  lost ;  but,  as  the  house  which 
oassed  the  bill  with  the  amendments,  may  be  willing  to  recede  from 

I  D'Ewes,  91,  564.  •  Comm.  Jour.  XXXV.  226. 


^68  LEGISLATIVE   ASSEMBLIES,  [PaRT    VIIL 

or  waive  them,  on  being  informed  that  they  are  distasteful  to  the 
other,  the  next  step  is  to  inform  that  house  of  the  disagreement. 
In  this  case,  as  the  communication  is  a  mere  negative,  which  car- 
ries no  reason  with  it,  it  is  the  usual  parliamentary  course,  for  the 
disagreeing  house  to  assign  reasons  for  its  disagreement,  in  order 
that  the  house,  by  which  the  amendments  were  made,  may  know 
and  weigh  the  gi-ounds  upon  which  they  are  objected  to.^  If  it 
were  consistent  with  the  usages  of  parliament  for  the  disag\-eeraent 
merely  to  be  communicated,  it  might  be  done  by  message  ;  but,  as 
it  is  to  be  accompanied  by  reasons,  the  more  formal  mode  of  con- 
ference is  necessary. 

2240.  If  either  house  should  so  far  disregard  the  forms  of  pro- 
ceeding between  the  two  houses,  relative  to  amendments,  as  to 
communicate  a  disagreement  merely  by  message,  instead  of  pro- 
posing a  conference  in  order  to  communicate  the  disagreement,  and 
at  the  same  time  to  assign  its  reasons  therefor,  the  method  of  pro- 
ceeding is,  to  redeliver  the  bill,  (at  a  conference,)  "  to  the  end  that 
the  due  course  of  parliament,  in  the  transmitting  of  things  of  this 
nature,  may  be  observed."  ^ 

2241.  The  next  step,  therefore,  after  disagreeing  to  the  amend- 
ments, is  to  appoint  a  committee  to  prepare  reasons  for  the  dis- 
agreement, to  be  communicated  to  the  other  house  at  a  conference. 
The  committee  reports  reasons,  which  being  considered,  and 
amended,  if  necessary,  are  agreed  to  by  the  house.  A  message  is 
then  sent  to  the  other  house  requesting  a  conference  upon  the  sub- 
ject-matter of  the  amendments  made  by  that  house  to  the  biU.  The 
conference  being  agreed  upon,  and  the  time  and  place  fixed  there- 
for, managers  are  appointed,  who  attend  accordingly ;  and,  on  re- 
turning, report  that  they  have  been  at  the  conference,  etc.,  and  have 
delivered  to  the  managers  for  the  other  house  the  reasons  for  dis- 
agreeing to  the  amendments  made  by  that  house  to  the  bill,  and 
have  left  the  bill  and  amendments  with  the  managers  for  that 
house.  Here  the  proceedings  on  the  part  of  the  disagreeing  house 
terminate,  until  something  further  has  taken  place  in  the  other. 

2242.  The  managers  for  the  amending  house,  on  returning  from 
the  conference,  report,  that  they  have  met  the  managers  for  the 
other  house,  at  the  conference,  etc.,  who  delivered  to  them  the  said 
bill  with  the  amendments,  together  with  a  paper  containing  the 
reasons  of  that  house  for  disagreeing  thereto.  This  report  may  be 
taken  into  consideration  immediately,  or  a  time  may  be  assigned 

1  Hatsell,  IV.  10,  note.  2  Hatsell,  IV.  49. 


Chap.  XV.]        amendments  between  tite  houses.  869 

for  that  purpose.  "When  the  report  is  considered,  it  is  first  read, 
then  the  amendment  which  is  the  subject  of  it,  and  then  the  house 
proceeds  to  reconsider  the  ainendment.  The  proper  motion  to  be 
made  is,  either  that  the  house  does  or  does  not  insist  upon  its 
amendment ;  and  it  is  immaterial  in  which  form  it  is  made,  because, 
when  put  to  the  question,  it  is  to  be  stated  allirmatively,  namely, 
that  the  house  do  insist  on  its  amendment.  If  this  motion  is  neg- 
atived, a  message  is  thereupon  sent  to  the  other  house,  to  inform  it 
that  the  amending  house  does  not  insist  on  its  amendments  to  the 
bill,  to  w^hich  the  other  house  has  disagreed.^  If  it  is  the  house  of 
commons,  by  which  the  message  is  sent,  the  bill  is  sent  with  it ;  if 
the  house  of  lords,  the  bill  remains  with  them.  The  two  houses 
are  now  agreed,  and  the  proceedings  relative  to  the  bill  are  at  an 
end. 

2243.  If  on  the  other  hand,  the  amending  house  insists  on  its 
amendments,  the  next  step  is  the  appointment  of  a  committee  to 
prepare  reasons  to  be  offered  at  a  conference  with  the  other  house 
for  insisting.  The  reasons  being  reported  and  agreed  to,  a  message 
is  sent  to  request  a  conference ;  which  being  agreed  to,  managers 
are  appointed,  who  meet  the  managers  for  the  other  house,  and 
deliver  them  the  reasons  together  with  the  bill  and  amendments. 
The  managers  on  retmning  to  their  respective  houses  report  accord- 
ingly, on  the  one  side,  that  they  have  been  at  the  conference,  and 
communicated  the  reasons,  as  directed,  and  left  the  bill  and  amend- 
ments with  the  managers  for  the  other  house  ;  and,  on  the  other,  that 
they  have  been  at  the  conference,  etc.,  that  the  managers  for  the 
amending  house  informed  them  that  that  house  insists  on  its  amend- 
ments, for  certain  reasons,  which  they  gave,  and  which  are  accord- 
ingly reported.  This  report  being  made,  the  house  may  enter  upon 
the  consideration  of  it  immediately,  or  may  assign  a  time  for  its 
consideration.  When  considered,  it  is  first  read,  and  then  the  dis- 
agreeing house  proceeds  to  consider  it,  upon  a  motion  to  insist  or 
not  insist  upon  its  disagi-eement  to  the  amendment.  If  this  motion 
is  decided  in  the  negative,  that  is,  that  the  disagi-eeing  house  does 
not  insist  on  its  disagreement,  this  is  equivalent  to  agreeing  to  the 
amendment,^  and  the  agreement  is  communicated  to  the  other 
house  by  message,'^  either  with,  or  without  the  bill,  according  as 
the  proceeding  is  in  the  lords  or  commons.  The  two  houses  are 
thus  agreed  and  the  proceedings  terminate. 

»  Conim.  J(mr.  Will.  iv".  tion  of  this  kind,  (Comm.  .Tour.   XXT.  938,) 

-  Coniiii.  Jour.  XXI.  93S.  was  made  at  a  conference,  which  seems  irreg' 

Con^m    Jour.  LVII.  6-15,    A  communica-     ular. 

73* 


370  LEGISLATIVE  ASSEMBLIES.  [PaRT    VIIL 

^244.  If,  however,  the  disagreeing  house  insists  on  its  disagree- 
ment, and  thinks  it  worth  while  to  proceed  any  further  in  the 
matter,  the  disagreement  is  to  be  made  known  to  the  other  house, 
in  order  that  the  latter  may  have  still  another  opportunity  to  recede 
from  its  amendment.  But,  as  formal  reasons  for  the  position  of 
each  house  have  now  been  presented  and  considered,  without 
effect,  it  is  not  according  to  the  usage  of  parliament  to  repeat  the 
proceeding,  even  with  additional  reasons ;  and,  therefore,  it  is  not 
competent  to  the  disagreeing  house  to  request  another  conference ; 
the  communication  must  now  be  made  by  means  of  a  free  confer- 
ence, the  nature  of  which  has  abeady  been  explained.  The  man- 
agers for  the  disagi'eeing  house,  on  returning,  report,  that  they  have 
been  at  the  free  conference,  etc.,  and  have  acquainted  the  managers 
for  the  other  house,  that  the  former  insists  on  its  disagreement  to 
the  amendments,  and  that  they  have  left  the  bill  and  the  amend- 
ments with  the  managers  for  that  house.^  The  managers  for  the 
amending  house,  on  their  part,  report  that  they  have  attended  the 
free  conference,  etc.,  that  the  disagreeing  house  insists  on  its  dis- 
agreement, and  that  such  and  such  arguments  were  used  by  the 
managers  on  both  sides,  and  that  the  managers  for  the  disagreeing 
house  hoped,  that  the  amending  house  would  recede  from  the 
amendments  to  which  the  former  had  disagreed.  On  consideration 
of  this  report,  the  amending  house  may  come  to  a  vote  not  to 
insist  on  its  amendment ;  in  which  case,  the  disagreeing  house  is 
informed  by  message,  accompanied  by  the  bill,  if  it  is  the  com- 
mons, that  the  amending  house  do  not  insist  on  Ihe  amendments 
made  by  that  house,  to  which  the  other  has  disagreed.-  The  bill  is 
sent  with  the  message,  if  the  proceeding  is  in  the  house  of  com- 
mons ;  if  in  the  lords,  the  bill  is  retained.  The  two  houses  are  thus 
agreed. 

2245.  If,  notwithstanding  the  reasons  and  arguments  urged  at 
the  free  conference,  the  amending  house  still  insists  on  its  amend- 
ments, this  resolution  can  only  be  made  known  to  the  other  house 
at  a  second  free  conference,  conducted  and  reported  as  before  ;  on 
the  report  of  which  the  disagreeing  house  may  take  either  of  three 
courses,  namely:  1.  It  may  come  to  a  resolution  no  longer  to  insist 
on  its  disagreement,  in  which  case  the  two  houses  are  agreed ;  or, 
2.  It  may  still  insist  and  proceed  to  another  free  conference,  which 
may  terminate  in  a  resolution  of  the  other  house  no  longer  to  insist 


'  Comm.  Jour.  X VIII.  769,  770.  «  Lords'    Jour.    XX.    660 ;     Coram.  Jour. 

XVIIL  769,  770.. 


CUAr.    XV.]  AMENDMENTS    BETWEEN   THE   UOUSES.  871 

on  its  amendment,  in  which  case,  the  two  houses  would  be  agreed ; 
or,  3.  It  may  adhere  to  its  disagreement,  in  which  case,  the  amend- 
ing house  must  yield,  or  there  can  be  no  agreement,  inasmuch,  as 
after  adhering,  it  is  not  competent  to  the  adliering  house  to  retract 
and  agree. 

2246.  If  the  disagreeing  house  adopts  the  second  course,  and 
Btill  insists  on  its  disagreement,  another  free  conference  may  then 
take  place,  on  the  report  of  which  the  amending  house  may  recede, 
or  adhere,  in  which  latter  case,  there  can  be  no  agreement,  unless 
the  disagreeing  house  yields  and  no  longer  insists  upon  its  dis- 
agreement. 

2247.  Free  conferences  may  be  repeated,  as  long  as  the  matter 
is  left  open  on  either  side  by  merely  insisting;  and  it  is  not  parlia- 
mentary to  adhere  until  after  two  free  conferences  have  taken 
place.'  Either  house  may,  however,  pass  over  the  term  of  insist- 
ing, and  adhere  in  the  first  instance.  On  the  other  hand,  the 
amending  house  may  recede  at  any  time  from  its  amendment,  in- 
stead of  insisting  upon  it,  and  agree  to  the  bill,  or  the  disagreeing 
house  may  recede  from  its  disagreement  to  the  amendment,  and 
agree  to  the  same  absolutely,  or  with  an  amendment.'-^  But  the 
amending  house  cannot  recede  from  or  insist  on  its  own  amend- 
ment, A\"ith  an  amendment,  for  the  same  reason  that  it  cannot 
amend  its  own  biU  after  having  passed  it."^  It  may  modify  an 
amendment  from  the  other  house,  by  ingrafting  an  amendment  on 
it,  because  it  has  never  assented  to  such  amendment ;  but  the 
amending  house  cannot  amend  its  own  amendment,  because  it  has 
on  the  question,  passed  it  in  that  form.'^ 

2248.  When,  on  the  report  of  the  second,  or  any  subsequent  free 
conference,  in  the  house  at  whose  request  it  has  been  held,  ^hat 
house  resolves  to  adhere  to  its  amendments,  or  to  its  disagreement, 
as  the  case  may  be,  the  result  is  to  be  communicated  to  the  other 
house,  together  with  the  biU,  at  a  free  conference ;  either  with  or 
without  reasons  ■'  for  adhering.  If,  however,  reasons  are  given  on 
the  one  side  for  adhering,  none  can  be  allowed  on  the  other,  for  not 
adhedng;  because  that  being  out  of  the  power  of  the  adhering 
house,  all  reasons  for  doing  so  must  of  course  be  irrelevant.  When 
both  houses  have  voted  to  adhere,  the  one  to  its  amendments,  and 

1  It  seoins,  that  the  lords  adliered,  on  tlie  ^  Cong.  Globe,  XIV.  376. 

report  of  the  Jirsl  free  conference  on  the  bill  *  Jefferson's  .Manual,  Sec.  XLV.;  Gray,  LX 

for  occasional  couformity.  Lords' Jour.  XVII.  353;  Same,  X.  240. 

244.  5  Lords'  Jour.  XVII.  262, 263.                       • 

*  Jefferson's    Manual,    Sec.   XLV.;    Gray, 
IX.  476. 


872  LEGISLATIVE  ASSEMBLIES.  [PaRT  VIII. 

the  other  to  its  disagreement,  the  one  which  last  adheres,  and  with 
whom  the  bill  is  left,  may  inform  the  other  house  of  the  fact,  and 
at  the  same  time  return  the  bill  to  the  other  by  message,  or  may 
sutler  ihe  bill  to  remain,  as  it  pleases.^ 

2249.  Besides  the  two  forms  of  proceeding  thus  far  described,  in 
which  amendments  are  agreed  to,  or  disagreed  to,  simply,  there  is  a 
third  which  frequently  occurs,  namely,  agreeing  to  an  amendment 
with  an  amendment,  to  which  the  other  agrees,  or  to  which  the 
other  agrees  with  an  amendment  to  which  the  first  agrees.^  Every 
part  of  the  amendments,  —  clauses  and  provisos  engrossed,  as  well 
as  amendments  properly  so  called,  —  may  be  thus  amended. 

2250.  K  a  bill  originating  in  one  house  is  passed  by  the  other 
with  an  amendment,  the  originating  house  may  agree  thereto  with 
an  amendment,  that  being  only  in  the  second  and  not  the  third  de- 
gree; for,  as  to  the  amending  house,  the  first  amendment,  with 
which  it  passed  the  bill,  is  a  part  of  its  text,  and  is  the  only  text  it 
has  agreed  to.  The  amendment  to  that  text  by  the  originating 
house,  therefore,  is  only  in  the  first  degree,  and  the  amendment  to 
that  again  by  the  amending  house  is  only  in  the  second  degree,  to 
wit,  an  amendment  to  an  amendment,  and  so  amendable.  So 
when,  on  a  bill  from  the  original  ing  house,  the  other,  at  its  second 
reading,  makes  an  amendment ;  on  the  third  reading  this  amend- 
ment is  become  the  text  of  the  bill,  and  if  an  amendment  to  it  is 
moved,  an  amendment  to  that  amendment  may  also  be  moved,  as 
being  only  in  the  second  degree.^ 

2251.  It  is  not  necessary  that  an  amendment  to  an  amendment 
should  be  made  in  the  first  instance.  If  the  amendments  are  first 
disagreed  to,  and  the  amending  house  insists  upon  the  amendments, 
the*  disagreeing  house,  as  it  may  then  resolve  not  to  insist,  may  also 
agree,  with  amendments.* 

2252.  When  one  house  agrees  to  the  amendments  of  the  other, 
with  amendments,  it  gives  no  reasons  therefor ;  the  last  amend- 
ment, as  well  as  that  to  which  it  is  an  amendment,  being  supposed 
to  carry  with  it  a  sufficient  reason,  until  the  contrary  is  shown ; 
and,  where  an  amendment  is  thus  agreed  to  conditionally,  the 
agreement  is  communicated  by  message.  Thus,  if  the  house,  to 
which  a  bill  is  returned  with  an  amendment,  which  is  always  done 
by  a  message,  agrees  to  the  amendment  with  an  amendment,  this 

1  Lords'  Jour.  XIV.  228;  Coram.  Jour.  XIV.         ^  Jefferson's  Manual,  Sec.  XLV.;  J.  of  H.  II. 
183  334,  .3.35;  Same,  IIL  473. 

*    2  May  360.  *  Comm.  Jour.    XXIII.  523,  526  ;    SamO| 

XXVn.  920. 


Chap.  XV.]       amendments  between  the  houses.  873 

agreomont  is  signified  to  the  former  by  a  message;  and,  if  that 
house  thereupon  agrees  to  the  amendment,  this  agreement  is  signi- 
fied in  Uke  manner.^  The  agreement  of  the  two  house:^,  in  a  case 
of  this  kind,  is  always  signified  by  a  message,  that  the  last-men- 
tioned amendment  is  agreed  to.- 

2253.  It  sometimes  happens,  that  in  the  proceedings  on  amend- 
ments between  the  two  houses,  some  two,  or  even  all  three,  of  these 
forms  occur,  that  is,  some  amendments  are  agreed  to,  others  disa- 
greed to,  and  olhers  again  are  agreed  to  with  amendments.  In 
such  cases,  the  communication  from  the  one  house  to  the  other 
take  place  by  means  of  a  conference,  so  long  as  there  is  a  disagree- 
ment as  to  any  one  point.  When  an  agreement  takes  place, 
whether  unconditional,  or  with  an  amendment,  the  communication 
is  always  made  by  a  message. 

2254.  In  proceeding  upon  amendments  between  the  t^wo  houses, 
it  is  a  rule,  that  neither  house  may  at  this  stage  of  a  bill,  leave  out 
or  otherwise  amend  any  thing,  which  they  have  already  passed 
themselves ;  unless  such  amendments  are  immediately  consequent 
upon  amendments  of  the  other  house,  which  have  been  agreed  to, 
and  absolutely  necessary  for  carrying  them  into  effect ;  ^  it  being 
"  contrary  to  the  constant  method  and  proceedings  in  parliament  to 
strike  out  any  thing  in  a  biU,  which  hath  been  fully  agreed  and 
passed  both  houses;  and  it  would  make  the  work  endless,  and 
niight  be  of  dangerous  consequence,  if  that  method  should  be 
diverted  and  changed."  ^ 

2255.  The  following  case  affords  a  good  illustration  of  the  rule 
stated  in  the  preceding  paragraph.  In  the  year  1678,  the  house  of 
commons  having  passed  a  bill  for  the  more  effectual  preserving  of 
the  king's  person  and  government,  by  disabling  papists  from  sitting 
in  either  house  of  parhament,  and  sent  it  to  the  lords,  that  house 
passed  it  with  three  amendments,  and  a  proviso,  and  returned  it  to 
the  commons.  The  commons  agreed  to  one  of  the  amendments 
and  to  the  proviso,  and  disagreed  to  the  remaining  amendments ; 
of  which  they  informed  the  lords,  together  with  their  reasons  there- 
for, at  a  conference.  Upon  consideration  of  the  reasons  offered  by 
the  commons,  for  disagi-eeing  to  the  amendments,  the  lords,  with- 
out insisting  on  their  amendments,  or  receding  therefrom,  or,  indeed, 
voting  upon  them  in  any  way,  agreed  to  propose  to  the  commons  a 

t 

1  Comm.  Jour.  XXIII.  658,  678,  679,  685;         *  Grey,  VI.  240,  253,  272,  273,  274;  Comm. 

Same,  XIX.  50.  Jour.  IX.  643,  545,  546,  547,  548;  Grey,  VI 

a  Comm.  Jour.  XXXII.  920.  274;  Lords'  Jour.  XIV.  374. 

8  May,  367.  ^ 


874  LEGISLATIVE   ASSEMBLIES.  [PaHI   VI IL 

uew  amendment  of  the  bill  by  way  of  expedient.  The  amend- 
ments originally  proposed  by  the  lords,  and  to  which  the  commons 
disagreed,  related  to  certain  provisions  of  the  bill  concerning  the 
queen's  servants.  The  expedient  proposed  by  the  lords  was,  to 
amend  the  bill  in  such  a  manner,  as  to  omit  the  queen  altogether 
from  its  provisions.  Not  having  proposed  this  amendment  in  the 
fii-st  instance,  they  had,  in  fact,  agreed  with  the  commons  as  to  this 
part  of  the  bill.  The  commons,  therefore,  declined  agreeing  to  the 
expedient  proposed,  for  the  reasons  akeady  mentioned,  which  were 
given  by  them  on  the  occasion.^ 

2256.  But  though  it  is  not  allowable,  in  the  case  of  a  disagree- 
ment to  amendments,  as  above  mentioned,  to  propose  to  amend  the 
bill  in  a  part  to  which  the  two  houses  have  aheady  agreed,  the 
house,  whose  amendments  are  disagreed  to,  as  they  may  waive 
their  amendments  altogether,  may  also  propose  a  modification  of 
their  own  amendments,  or  new  amendments  in  the  place  of  them ; 
as  was  done  by  the  lords  in  the  ease  above  stated,  by  making  cer- 
tain limitations  touching  the  number  of  the  queen's  servants,  to 
which  the  commons  agreed.  In  this  case,  the  disagreement  of  the 
commons,  the  expedient  proposed  by  the  lords,  the  disagreement  of 
the  commons  thereto,  were  all  communicated  at  conferences.  The 
subsequent  proceedings,  relating  to  the  new  amendments,  were  con- 
sidered in  the  light  of  new  proceedings,  and  not  as  a  continuation 
of  the  former.  If  it  had  been  otherwise,  free  conferences,  mstead 
of  conferences,  woiM  have  been  proper. 

2257.  The  house,  whose  amendments  are  disagreed  to,  though 
not  at  liberty  to  propose  new  amendments  to  a  part  of  the  bill,  to 
which  both  houses  have  agreed,  as  above  mentioned,  may  never- 
theless propose  amendments  to  a  part  of  it,  to  which  the  amending 
house  has  not  agreed.  Thus,  where  the  lords  passed  a  bill  from 
the  commons,  with  an  amendment,  leaving  out  certain  words, 
which  amendment  was  disagreed  to  by  the  commons,  the  lords 
thereupon  proposed  as  an  expedient,  to  insert  certain  words  in  the 
words  originally  proposed  to  be  left  out,  to  which  the  commons 
agreed.  In  this  case,  the  words  originally  proposed  to  be  left  out 
had  not  been  agreed  to  by  both  houses.'^ 

2258.  If  the  originating  house  in  the  first  instance  agrees  to  the 
amendments  offered  to  it,  or  if  either  house,  afterwards,  during  the 

'  Lords'  Jour.  XIII.  365,366,373,374,378,  ification  by  the  lords  of  tlieir   own   ainend- 

384:  Coinm.  Jour.  IX.  543,  545,  546,  547,  548;  ment;  thoy  had  ah-eady  agreed  to  every  part 

Grev  VI.  240,  253,  272,  273,  274.  of  the  bill,  except  that  which  they  proposed 

2  Lords'  Jour.  XL VIII.  907 ;   Comm.  Jour,  to  amend. 
LXVII.  468,  479.   This  is  only,  in  fact,  a  mod- 


ClIAP.    XV.]  AMENDMENTS    BETWEEN   T£fE   HOUSES.  875 

proceedings  on  the  disagreeing  votes  of  the  two  houses,  with  re- 
gard to  the  bill,  passes  a  vote  to  agree,  the  agreement  is  to  be  com- 
municated by  message  ;  and  the  same  kind  of  communication  may 
and  usually  does  take  place,  as  we  have  seen,  when  either  house 
votes  to  adhere ;  but,  so  long  as  the  matter  is  kept  open  by  using 
the  term  "insist,"  and  it  may  be  used  as  often  as  desirable,  the 
votes  are  communicated  by  means  of  a  conference,  either  simple  or 
free.  The  necessity  for  this  last  proceeding  is,  however,  now  done 
away  with,  in  both  branches  of  parliament,  by  resolutions  agreed 
to  in  both  on  the  12th  and  15th  of  May,  1851,  by  which  it  is  pro- 
vided that,  in- cases  in  which  either  house  disagrees  to  any  amend- 
ments made  by  the  other,  or  insists  upon  any  to  which  the  other 
has  disagreed,  such  house  is  willing  to  receive  the  reasons  for  dis- 
agreeing or  insisting  (as  the  case  may  be)  by  message,  without  a 
conference,  unless  the  other  should  desire  to  communicate  the  same 
at  a  conference.  In  the  legislative  assembhes  of  this  country,  the 
disagreeing  votes  on  amendments  to  bills,  whatever  they  mav  be, 
are  usually  communicated  by  message,  with  or  without  a  propo- 
sition for  a  conference. 

2259.  Conferences,  in  general,  as  described  in  the  fifth  part,  and 
conferences  on  amendments  to  bills,  as  described  in  this  chapter, 
which  were  originally  invented  and  practised  at  a  remote  period, 
when  the  proceedings  of  one  house  were  not  known  in  the  other, 
until  they  were  regularly  communicated  to  the  latter,  still  constitute 
a  part  of  the  common  parliamentary  machinery,  and  may  be  re- 
sorted to  on  proper  occasions.  They  constitute  merely  a  medium 
of  communication  between  the  two  houses,  which  is  called  a  con- 
ference where  the  communication  is  previously  agreed  upon  by  the 
house  which  makes  it,  and  a  free  conference  where  it  is  left  to  the 
discretion  of  the  managers,  who  have  no  other  authority,  in  any 
case,  than  to  make  the  communication  with  which  they  are  charged. 
The  Vules  applicable  to  the  disagreeing  votes,  which  for  the  most 
part  lead  to  these  conferences,  are  ajiplied  to  what  are  denominated 
conferences  in  our  legislative  assemblies;  and  the  two  have  the 
same  general  purpose  in  view,  namely,  to  bring  the  tvvo  houses  into 
an  agi-eement  in  regard  to  matters  in  chfTerence  between  them.  But 
here  the  similarity  appears  practically  to  end.  With  us,  the  man- 
agers of  a  conference,  instead  of  being  a  medium  of  communication 
merely,  constitute  and  are  known  as  a  committee  of  the  branch  to 
which  they  respectively  belong ;  and  the  tw^o  constitute  a  joint 
committee  of  conference,  whose  function  it  is  to  consider  and  rC' 
port  upon  the  subject-matter  of  difference  between  the  two  houses. 


876  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

These  committeesj  and  the  practice  relating  to  them,  are  now  to  be 
described. 

2560.  When  the  house,  in  which  a  bill  originates,  receives  it  from 
the  other  with  amendments,  the  latter  house,  whatever  other  pro- 
ceedings it  may  institute  or  adopt  with  regard  to  such  amendments, 
when  it  comes  to  consider  them,  has  properly  but  one  of  three 
courses  to  pursue,  namely,  either  to  agree,  disagree,  or  agree  with 
amendments.  It  is  immaterial,  in  a  parliamentary  sense,  in  what 
form  the  motion  is  put,  inasmuch  as  an  equal  division  in  either 
form  requires  the  casting  vote  of  the  presiding  officer,  and  on  either 
a  motion  to  amend  the  amendment  may  be  ingrafted..  If  either  of 
these  motions  is  decided  in  the  negative,  it  necessarily  concludes 
the  other,  for  the  positive  of  either  is  exactly  the  equivalent  of  the 
negative  of  the  other,  and  no  other  alternative  remains.  Thus,  for 
example,  if  the  question  is  for  disagreeing,  those  who  are  in  favor 
of  the  amendment  may  propose  amendments  to  it,  and  make  it  as 
perfect  as  they  can,  before  the  question  is  taken  on  disagTceing  to 
it.  So  if  the  question  is  stated  on  agreeing,  amendments  may  be 
moved.^  On  this  first  consideration,  therefore,  of  a  biU  returned  wdth 
an  amendment  from  the  other  house,  to  the  house  in  which  it  origi- 
nates, no  other  motion  than  the  above  is  properly  in  order. 

2261.  When  the  amending  house  receives  back  the  bill  after  this 
first  consideration  of  it,  with  its  amendment  agieed  to  with  an 
amendment,  or  disagreed  to  altogether,  the  two  houses  are  not  yet 
agreed,  and  further  action  is  still  necessary  for  that  purpose.  If  its 
amendment  is  agreed  to  with  an  amendment,  the  proceedings  are 
the  same  with  what  have  just  taken  place  in  the  originating  house, 
namely,  the  amendment  is  agreed  to,  or  disagreed  to,  or  agreed  to 
with  an  amendment.^  If  the  amendment  is  simply  disagi-eed  to, 
the  amending  house  has  but  one  of  three  courses  to  pursue,  name- 
ly, it  may  recede  from  its  amendment,  insist  upon  it,  or  adhere  to 
it.  If  one  only  of  these  motions  is  made,  that,  of  course,  which- 
ever it  is,  must  be  put ;  but  two  or  more  of  them  may  be  made  and 
pending  at  the  same  time,  in  which  case,  the  motion  to  recede  is 
entitled  to  precedence  over  the  motion  to  insist  ^  and  the  motion  to 
adhere,*  and  the  motion  to  insist  over  that  to  adhere.^  The  rules 
applicable  to  these  three  motions  are  the  same  at  every  future  stage 
in  the  progress  of  the  disagreeing  votes  on  the  biU,  whether  they 

1  Jefferson's  Manual,  Sec.  XXVIII.  *  Reg.  of  Deb.  II.   Part  2,  2639;  Same,  XL 

a  J.  of  H.  II.  334,  335;  Same,  III.  473.  Part  2,  1656;  Cong.  Globe,  XXL  1833. 

»  Cong.  Globe,  X.  405;  Same,  XX.  695.  ^  Coiig.  Globe,  XL  803. 


Chap.  XV.]       amendments  between  the  houses.  877 

are  in  the  amending  or  in  the  disagreeing  house,  though  the  cases 
are  not  necessarily  the  same. 

2262.  The  motion  to  recede,  in  the  originating  house,  is,  to 
recede  from  its  disagreement  to  the  amendment;  if  made  in  the 
other,  it  is  to  recede  from  its  amendment.  If  made  in  the  latter, 
and  decided  in  the  affirmative,  the  effect  of  the  decision  is  to  bring 
the  two  houses  to  an  agreement  at  once.  If  made  in  the  originat- 
ing house,  and  there  decided  in  the  affirmative,  the  effect  of  the 
decision  is  to  prepare  the  way  for  an  agreement,^  and  the  house 
may  then  agree,^  or  agree  with  an  amendment.'^  The  immediate 
effect  of  a  negative  decision  of  this  question,  in  both  houses,  ia 
obvious  ;  it  is  also  equivalent  to  a  vote  to  insist,  but  not  to  adhere.* 
A  negative  decision  may  be  followed  by  a  motion  to  insist,  or  a 
motion  to  adhere,  or  both.^ 

2263.  The  motion  to  insist,  in  its  parliamentary  sense,  merely 
reaffirms  the  position  of  the  house  by  which  it  is  adopted,  and  may 
be  adopted,  and  with  like  effect  by  either.  It  appears  to  have  been 
newly  introduced  about  two  hundred  years  ago,  and  is  said  to  be 
« a  happy  innovation,  as  it  multiplies  the  opportunities  of  trying 
modifications  which  may  bring  the  houses  to  a  concurrence." "  The 
effect  of  a  decision  of  this  motion  in  the  affirmative,  and  it  is 
applied,  of  course,  only  where  there  are  disagreeing  votes,  is,  on 
further  consideration,  to  reaffirm  the  position  by  which  it  passes, 
thus,  by  this  motion,  the  amending  house  insists  on  its  amendment, 
and  the  originating  house  on  its  disagreement  to  the  amendment. 
After  a  motion  to  insist  has  been  decided  in  the  negative,  it  is  then 
in  order  to  recede  or  adhere." 

2264.  The  motion  to  adhere  not  only  reaffirms  but  strengthens 
the  position  ahready  taken  by  the  house  adopting  it,  and  is  under- 
stood to  imply  that  the  house  will  not  change  its  determination. 
But  there  is  nothing  irrevocable  in  the  affirmative  of  this  motion, 
and  if  decided  in  the  negative,  it  is  then  in  order  to  recede  or 
insist.^ 

2265.  In  this  way  a  bill  upon  which  there  are  disagreeing  votes, 
sent  from  one  house  to  the  other,  with  a  message  announcing  the 
action  of  that  other  upon  it,  is  usually  in  the  form  of  one  of  the 
resolutions  above  mentioned.     K  the  house  which  thus  receives  a 

1  J.  of  H.  20th   Cong.  1st  Sess.  695;  Same,         ^  Jefferson's  Manual,  Sec.  XXVHI. 
27th  Cong.  2d  Sess.  990,  998.  •  Jefferson's  Manual,  Sec.  XLV. 

s  J.  of  H.  Vin.  248,  249 ;  J.  of  S.  16th  Cong.         '  Jefferson's  Manual,  Sec.  XXX\7n. 
1st  Sess.  385.  *  Jefferson's  Manual,  Sec.  XXXVUI.;  J.  of 

»  J.  of  S.  n.  379.  H.  VU.  399. 

*  Cong.  Globe,  X.  407. 

74 


878  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIII. 

bill  does  not  thereupon  come  to  the  desired  agreement,  it  returns 
the  biU  with  a  like  message.  But  it  is  competent  for  either  of  the 
houses,  besides  the  resolution,  above  mentioned,  at  any  of  these 
stages,  when  the  bill  is  in  its  possession,  also  to  propose  to  the  other 
the  appomtment  of  a  committee  of  conference.  This  it  does 
usually,  by  the  appointment,  on  its  part,  of  a  committee  to  confer 
with  a  similar  committee  of  the  other  branch,  on  the  subject-matter 
of  difference  between  the  two  houses,  and  proposing  the  appoint- 
ment of  a  similar  committee,  on  the  part  of  that  branch.  The 
motion,  commonly  made  on  these  occasions  is,  simply,  for  the 
appointment  of  a  committee  of  conference,  and  this  motion  being 
agreed  to  by  the  house  in  which  it  is  made,  that  house  immediately 
proceeds  to  the  appointment  of  the  committee,  on  its  part,  and  to 
notify  the  other  thereof,  with  its  proceedings  on  the  bill,  by  mes- 
sage. This  motion  must  always  emanate  from  the  house  in  pos- 
session of  the  bill,'  and  be  accompanied  or  preceded  by  one  of  the 
resolutions  above  mentioned,  namely,  either  to  recede,  insist,  or 
adhere ;  ^  but  this  order  of  proceeding,  though  much  the  most 
usual,^  is  not  essential,^  and  conference  may,  in  fact,  be  asked, 
before  the  house  asking  it  has  come  to  a  resolution  of  disagreement, 
insisting,  or  adhering.  This,  however,  is  an  inconvenient  practice, 
and  makes  some  peculiar  proceedings  necessary  which  will  be 
adverted  to  hereafter.  The  motion  for  a  committee  of  conference 
not  uncommonly  makes  a  part  of  the  motion  to  disagree,''  to  recede, 
insist,''  or  adhere,  in  which  case  a  motion  to  recede  takes  prece- 
dence," and  the  two  motions  may  be  divided,^  or  if  the  motion  to 
insist,  etc.,  is  made  separately,  the  motion  for  a  committee  of  con- 
ference may  be  added  to  it  by  way  of  amendment.^  A  conference 
may  also  be  proposed  on  the  report  of  a  committee  to  whom  the 
bill  and  amendments  are  referred.'^ 

2266.  It  has  been  made  a  question,  whether  there  could  be  a 
committee  of  conference  after  or  accompanying  a  vote  to  adhere, 
the  former  implying  a  willingness,  and  the  latter  being  supposed  to 
imply  an  unwiUingness,  to  change  the  vote  already  agreed  to. 
But,  though  a  vote  to  adhere  is  a  stronger  expression  of  opinion 
than  a  vote  to  insist,  and  though  a  conference  after  adhering  is  an 

1  Jefferson's  Manual,  Sec.  XLVL  Cong.  1st  Sess.  291;  J.  of  H.  VIIL  261,  264, 

2  Cong.  Globe,  XV.  701.  266. 

»  Cong.  Glcjbe,  XV.  701.  '  J.  of  H.  29th  Cong.  1st  Sess.  646. 

♦  Jefferson's  Manual,  Sec.  XLVL  »  J.  of  H.  23d  Cong.  2d  Sess.  231;  J  of  S 
»  J.  of  S.  16th  Cong.  1st  Sess.  426.                      24th  Cong.  1st  Sess.  363. 

•  J.  of  H.  L  207,  268,  269 ;   J.  of  S.  16th         »  J.  of  S.  24th  Cong.  1st  Sess.  363. 

i«  J.  of  S.  III.  218 


Chap.  XV.]         amendments  between  the  houses.  879 

unusual  practice,  yet  there  are  instances,  both  in  parliament  ^  and 
in  this  country,'^  of  such  conferences  being  demanded  and  held  with- 
out objection  in  point  of  order.  In  this  country,  at  least,  the  resolu- 
tion to  adhere  stands  upon  the  same  footing,  in  this  respect,  with  a 
resolution  to  insist,  and  with  the  more  reason,  that  here  a  vote  to 
adhere  may  be  reconsidered.'^  But  the  foregoing  rule  applies  only 
where  the  adherence  is  on  one  side;  where  both  houses  have 
adhered,  conference  is  no  longer  demandable.-* 

2267.  The  two  houses,  of  which  our  legislative  assemblies  are 
composed,  being  equal  in  dignity,  it  is  not  the  function  of  either  to 
appoint  the  time  and  place,  for  the  conference,  or  to  do  any  thing 
more,  if  it  does  any  thing  at  all,  than  in  proposing  a  conference,  to 
propose  a  time  and  place  for  holding  the  same.  Most  usually, 
however,  nothing  is  said  in  the  proposition  for  a  conference,  with 
respect  to  the  time  and  place,  and  in  that  case,  if  the  proposal  is 
agreed  to,  the  committees  meet  at  such  time  as  may  be  convenient 
in  the  room  appropriated  for  conference.  For  obvious  reasons, 
each  house  is  left  to  determine  the  size  and  quorum  of  its  commit- 
tee for  itself.  If  nothing  is  said  in  either  of  these  respects,  the 
ordinary  rules,  with  regard  to  the  appointment  and  organization  of 
select  committees,  prevail.  A  committee  of  conference  is  not  a 
heterogeneous  body,  acting  as  one  committee,  but  two  committees, 
each  of  w^hich  acts  by  a  majority.'^  Every  member  of  each  com- 
mittee is  to  represent  the  prevailing  party  of  the  house  to  which  he 
belongs,  on  the  disagreeing  vote  in  question. 

2268.  The  house  to  which  a  message  is  sent,  announcing  the 
action  of  the  other  on  the  bill,  and  containing  a  proposal  for  a  con- 
ference, comes  to  such  of  the  above-mentioned  resolutions,  as  it 
pleases,  if  any,  and  accepts  or  declines  ^  the  proposition  for  a  con- 
ference ;  it  may  either  do  this  at  once,'''  or  take  such  intermediate 
steps,  wdth  regard  to  the  message,  as  it  may  think  necessary  and 
proper ;  as  by  postponing  it,  or  ordering  it  to  lie  upon  the  table ;  ^ 
or  by  referring  it,"  and,  on  the  report  of  the  committee,  declining,^*^ 
or  acceding  to,  the  conference.  The  result,  whatever  it  may  be,  is 
to  be  sent  to  the  house  proposing  the  conference  by  message.     If 


»  Jeffcrsnn's  Jlrtnual,  Sec.  XL VI.  «  J.  of  H.  III.  50,  52. 

9  J.  of  H.  II.  133,  13-1,  138;  S:ime,  VIII.  63;  '  Ann.  of  Cong.  5th  Cong.  Vol.  1,  28. 

Bame,  IX.  746;  Reg.  of  Deb.  X.  P.irt  2,  2493.  «  j.  of  S.  19th  Cong.  1st  Sess.  300. 

8  J.  of  H.  I.  106,  107,  108.  »  J.  of  S.  19th  Cong.  1st  Sess.  358;    Sdnce, 

*  Reg.  of  Deb.  II.  Part  2,  2603.  23d  Cong.  1st  Sess.  112,  113. 

»  J.  of  n.  30th  Cong.  1st  Sess.  1288;  Cong.  '»  J.  of  S.  19th  Cong.  1st  Sess.  806,  307. 
Globe,  XV.  1179. 


880  LEGISLATIVE   ASSEMBLIES.  [PaRT   VIIL 

the  conference  is  declined,  the  bill  is  to  be  returned  to  the  house 
proposing  it,  with  such  resolutions  thereto,  as  that  house  may  think 
proper.  The  other  house  may  then  resort  to  such  measures,  with 
regard  to  the  matter  in  question,  as  it  may  think  advisable  and  con- 
venient. If  the  conference  is  acceded  to,  the  committee  is  therer 
upon  appointed,  either  immediately  or  after  an  interval,  in  the  same 
manner  with  other  select  committees,  and  the  appointment  is  noti- 
fied accordingly  to  the  house  proposing  the  conference  by  message. 
When  the  committee  is  thus  appointed,  the  papers,  including  the 
bill,  and  proceedings  thereon,  together  with  the  resolution  for  their 
appointment,  are  delivered  to  the  committees,  and  the  two  commit- 
tees thereupon  proceed. 

2269.  The  authority  of  committees  of  conference  is  that  of  the 
houses  to  which  they  respectively  belong,  with  regard  not  only  to 
the  positions  of  each  already  taken,  but  to  such  expedients,  within 
the  rules  above  mentioned,  as  may  be  proposed  by  one  committee 
and  agreed  to  by  the  other.i  j^  this  way,  it  is  the  business  of  com- 
mittees of  conference  to  cover,  and  by  their  report,  if  it  is  adopted, 
to  make  an  end  of  all  matters  in  dispute  between  the  two  houses. 
Hence  the  committees  of  conference  may  come  to  an  agreement  or 
disagreement,  or  they  may  agree  in  part  only,  and  disagree  for  the 
residue  ;  -  and  their  report  is  to  be  drawn  up  and  made  accordingly. 
In  all  cases,  in  which  a  conference  is  asked,  after  a  resolution  to 
disagree,  etc.,  the  committee,  on  the  part  of  the  house  proposing  it, 
is  to  leave  the  bill  and  papers  with  the  committee  of  the  other,  or 
if  that  committee  refuses  to  receive  them,  on  the  table  in  the  con- 
ference room ;  but  where  a  conference  is  asked  before  the  house 
asking  it  has  come  to  a  resolution  of  disagreement,  etc.,  the  papers 
are  not  to  be  left  with  the  committee  of  the  other  house,  but  are  to 
be  brought  back  to  the  fii'st,  to  be  the  foundation  of  the  vote  to  be 
there  given.^  Having  agreed  upon  their  report,  it  is  then  to  be 
made  accordingly.  The  report  of  a  committee  of  conference  is  in 
one  of  three  forms,  namely,  either  that  the  committee  have  agreed, 
or  that  they  have  disagreed,  or  that  they  have  agreed  in  part,  and 
disagreed  for  the  residue,  and,  in  either  case  according  to  the  house 
in  which  the  report  is  made,  either  with  or  without  the  papers.  The 
report  is  the  same  in  both  branches,  and  is  made  in  each  by  the 
committee  which  belongs  to  it,  accompanied  by  the  bill  and  othei 
papers  in  that  branch,  the  committee  of  which  is  entitled  to  them. 

1  J.  of  H.  I.  127, 192,  543,  544 ;  J.  of  S.  16th         "  J.  of  H.  I.  598,  599. 
Cong.  1st  Sess.  291,  294.  *  Jefferson's  Manual,  Sec.  XLVL 


Chap.  XV.]        ajjendments  between  the  houses.  881 

2270.  The  report  of  a  committee  of  conference,  if  it  is  an  agree- 
ment, and  accompanied  by  the  bill  and  other  papers,  is  for  obvious 
reasons,  a  quasi  privileged  question,  arfd  may  be  made  at  any  time,^ 
even  after  an  incidental  motion,  as,  for  example,  for  a  call  of  the 
house,2  jg  made  and  pending.  A  report  of  this  kind  is  objection- 
able, in  point  of  form,  if  the  committees  have  discussed  and  consid- 
ered amendments  not  committed  to  ihem,^  or  have  introduced 
new  matter,^  or  have  not  confined  themselves  to  the  differences  be- 
tween the  houses,  but  have  undertaken  to  report  future  legislation,'^ 
or  have  yielded  or  taken  possession  improperly  of  the  bill  or  other 
papers  ;  ^  but  objections  in  point  of  form,  must  be  made  when  the 
report  is  offered ;  if  the  report  is  allowed  to  be  introduced,  formal 
objections  can  only  avail  afterMT^ards  as  reasons  for  not  agreeing  to 
the  report.'^  A  report  of  this  kind  need  not  be  proceeded  with  im- 
mediately, but  may  be  postponed,  or  referred  to  a  select  committee, 
or  a  committee  of-  the  whole.^  A  similar  report  (without  the  bill) 
is  ready,  at  the  same  time,  to  be  made  in  the  other  branch,  by  the 
committee,  on  its  part.  If  made  immediately,  the  consideration  of 
it  is  deferred  until  the  bill  comes  into  that  branch  ;  or  the  making 
of  the  report  may  be  deferred  until  that  time. 

2271.  "When  this  report  is  taken  into  consideration,  in  the  house 
to  which  the  bill  is  returned,  whatever  intermediate  proceedings 
may  take  place,  the  question  is  to  be  taken  thereon,  as  it  stands,  as 
a  whole,  without  amendment,^  or  division ;  ^'^  though  it  has  been 
held  that  the  report  might  be  divided,"  that  it  might  be  agreed  to  in 
part  and  disagreed  to  for  the  remainder,^-  and  that  it  might  even  be 
amended.^3  jf  ^jjg  report  is  agreed  to,  it  is  then  sent  with  the  bill  to 
the  other  house,  by  a  message,  and  that  house  proceeds  to  consider 
the  report  of  the  committee  of  conference,  on  its  part,  now  made  or 
proceeded  to  for  that  purpose.  If  the  report  is  rejected,^^  such  fur- 
ther proceedings  take  place,  with  regard  to  the  bill,  by  the  house  in 
which  it  remains,  as  that  house  may  think  proper  and  convenient ; 
and  it  is  no  objection  to  such  proceedings  that  they  are  recom- 
mended in  the  report  of  the  committee  which  has  been  rejected.^^ 

< 

1  J.  of  H.  32d  Cong.  1st  Sess.  481.  »  J.  of  S.  II.  2T0;  Reg.  of  Deb.  H.  Part  2, 

2  J.  of  H.  31st  Cong.  1st  Sess.  1590.  2672;  Cong.  Globe,  XI.  869. 

8  J.  of  H..  VIII.  383.  10  Cong.  Globe,  XV.  961,  1179. 

*  J.  of  H.  30th  Cong.  1st  Sess.  811.  "J.  of  S.  III.   304;  Same,  IV.  71;    Cong 

6  Cong.  Globe,  XI.  902.  Globe,  XI.  505. 

«  Reg.  of  Deb.  X.  Part  2, 2557 ;  Cong.  Globe,  1=  J.  of  S.  V.  359,  360. 

VII.  246.  13  J.  of  S.  V.  609. 

'  Reg.  of  Deb.  X.  Part  2,  2557.  "  J.  of  S.  19th  Cong.  2d  Sess.  284,  285. 

«  J.  of  H.  VUI.  63,  65, 74 ;  Same,  IX.  660.  is  J.  of  H.  32d  Cong  2d  Sess.  409- 

74* 


882  LEGISLATIVE  ASSEMBLIES.  PaRT  VIIL 

2272.  If  committees  of  conference  cannot  come  to  an  agreement, 
they  make  a  statement  of  this  fact/  by  way  of  report,  in  their  re- 
spective houses,  accompanied  by  the  bill  in  the  house,  which  is 
entitled  to  possession  of  it,  and  that  house  thereupon  proceeds,  in 
relation  to  it,  in  such  manner  as  it  deems  most  convenient  and 
proper.  In  this  case  it  is  usual  for  the  committee  on  the  part  of 
each  branch,  respectively,  to  recommend  what  course  it  ought  to 
pui'sue  in  regard  to  the  disagreeing  votes  betv\^een  the  two  houses.^ 
Where  committees  of  conference  are  unable  to  agree,  the  bill  is  to 
be  sent  fi-om  one  house  to  the  other,  with  messages,  in  the  same 
manner  as  if  no  conference  had  taken  place.  Where  a  committee 
of  conference  reports  an  agreement  in  part  only,  and  states  that  the 
committees  were  unable  to  agree  for  the  residue,  the  agreement 
and  disagreement  are  to  be  proceeded  with,  in  the  manner  above 
mentioned,  but  the  report  and  biU  cannot  be  sent  out  of  the  house, 
in  which  the  latter  belongs,  so  long  as  any  thing  remains  to  be 
done  there  in  reference  to  it. 

2273.  Where  a  proposition  for  conference  is  declined,  the  biU  is 
to  be  returned  to  the  house  proposing  the  conference  with  the  mes- 
sage declining  it ;  in  which  case,  and  also  where  the  report  of  a 
committee  of  conference  is  rejected,''^  or  where  the  committees  fail 
of  an  agreement,^  the  house,  in  possession  of  the  bill,  may  pfopose 
a  further  conference,  to  be  agreed  to,  held,  and  reported,  in  the 
manner  akeady  mentioned.-^  For  this  purpose,  if  necessary,  and 
also  for  the  purpose  of  any  other  proceeding  on  disagreeing  votes, 
with  relation  to  bills,  either  house  may  reconsider  its  former  votes, 
and,  if  necessary,  send  to  the  other  for  the  bilL*^ 

2274.  The  house  to  which  a  bill  is  returned  with  amendments, 
though  in  strictness,  it  has  no  other  power  over  the  bill  than  to  pass 
upon  the  amendments,*^  and  though  the  proceeding  is  an  unparlia- 
mentary one,  may  notwithstanding  dispose  of  the  bill,  if  that  is  the 
effect  of  the  order,  by  ordering  it  to  lie  on  the  table,^  or  by  post- 
poning the  biU,  together  with  the  report  of  a  committee  of  confer- 
ence thereon,  to  a  day  beyond  the  session.^ 

2275.  If  the  two  houses,  in  some  one  of  the  ways  aboye  men- 
tioned, come  to  an  agreement,  concerning  amendments  in  reference 

1  J.  of  H.  I.  127.  6  J.  of  H.  IV.  366. 

2  J.  of  S.  I.  488;  Same,  IIL  392;  J.  of  H.         «  J.  of  H.  I.  106,  107,  108;  J.  of  S.  32d  Cong 
19th  Cong.  2d  Sess.  370.  2d  Sess.  140,  141. 

8  J.  of  S.  V.  472,  475,  581,  586 ;  J.  of  H.  IX.         '  Reg.  of  Deb.  IV.  Part  2,  2698. 
618,  619,  620.  8  Cong.  Globe,  XI.  649. 

i  J.  ^f  S.  V.  681,  586.  »  .T.  of  S.  V.  681,  586. 


Chap.  XVL]  authentication  of  bills.  883 

to  which  they  have  disagreed,  the  amendments,  if  any,  are  adopted, 
are  inserted  or  certified  in  ^he  usual  manner,  and  the  bill  passed 
like  any  other  bill.  If  they  do  not  come  to  an  agreement,  the  bill 
is,  of  course,  lost,  and  remains  on  the  files  of  that  branch  where  it 
was  last  left.  It  may  be  resuscitated,  however,  and  further  attempts 
made,  to  come  to  an  agreement  in  the  manner  above  mentioned, 
by  either  house  at  its  pleasure,  during  the  same  session.^ 


CHAPTER    SIXTEENTH.     • 

OF  THE  AUTHENTICATION  OF  BILLS  BETWEEN  THE  TWO  HOUSES. 

2276.  When  a  bill  passes  in  the  house,  in  which  it  originated,  a 
certificate  or  memorandum  is  made  \\athin  it,  in  the  Norman 
French  language,  indicating  the  proceedings  of  the  house  wdth 
reference  to  it.  A  similar  certificate  is  made  upon  a  bill,  which, 
having  previously  been  passed  in  one  house,  and  sent  to  the 
other,  is  there  passed.  Bills  are  also  authenticated  by  the  signa- 
ture of  the  clerk  of  the  house.^  The  different  kinds  of  certificates 
will  appear  from  the  following  classification  of  bills,  with  reference 
to  the  different  proceedings  upon  them. 

2277.  I.  Bills  originating  in  the  house  in  which  they  are  passed, 
and  which  pass  as  they  were  engrossed,  or  with  such  amendments 
only,  as  are  made  in  the  engrossment,  by  the  addition  or  erasure  of 
words.  Bills  of  this  description  originating  in  the  house  of  com- 
mons have  the  words,  soit  bailie  aiix  seigneurs,  "  let  it  be  deliv- 
ered to  the  lords,"  wi-itten  by  the  clerk  within  the  bill,  at  the  top, 
towards  the  right  hand.-^  Those  which  originate  in  the  lords  are 
subscribed  at  the  foot  with  these  words,  soit  bailie  aux  commnns, 
"  let  it  be  delivered  to  the  commons."  ^ 

2278.  II.  Bills  originating  in  the  house  in  which  ihey  are  passed, 
which  do  not  pass  as  they  were  engrossed,  or  with  slight  amend- 

1  The    practice    above    described     is    that  somewhat  more  cumbrous  forms  of  parliament 

■which  prevails  in  the  congress  of  the  United  should  not  be  practised. 
States,  and  it  is  believed  in  all  the  other  legis-         «  Bramwcll  on  Bills,  137, 138. 
lative    assemlilies  of    this    country.      There         *  D'Ewes,  45;  Ilackwell,  154. 
seems  to  lie  no  good  reason,  however,  why  the         *  D'Ewes,  45;  Hackwell,  154. 


884  LEGISLATIVE    ASSEMBLIES.  [PaRT   VIII. 

ments  only,  but  with  a  proviso,  or  schedule  of  additions,  that  "is,  a 
clause  or  clauses  in  parchment,  filed  to  the  bill.  Bills  of  this  de- 
scription are  written  upon  at  the  top,  if  from  the  commons,  or  at  the 
foot,  if  from  the  lords,  with  these  words,  soit  bailie  aux  seigneurs^  or 
aux  communs,  avecqiie  unproviso  annex,  or  avecque  tin  schedule  annex, 
"  let  it  be  delivered  to  the  lords,  or  to  the  commons,  with  a  proviso, 
or  with  a  schedule,  annexed,"  as  the  case  may  be ;  and  the  proviso  or 
schedule  is  also  certified,  soit  bailie  aux  seigneurs,  or  soit  bailie  aux 
communs,  as  the  case  may  be.^ 

2279.  III.  Bills  of  the  first  class,  agreed  to  in  the  house  to  which 
they  are  sent,  without  amendment,  addition,  or  proviso,  are  sub- 
scribed, under  the  subscription  or  certificate  of  the  other  house,  with 
the  words,  a  cet  bill  les  communs,  or  les  seigneurs,  as  the  case  may 
be,  sont  assentus,  "to  this  bill  the  commons"  or  "the  lords,"  as  the 
case  may  be,  "  have  agreed."  ^ 

2280.  IV.  Bills  of  the  first  class,  agreed  to  in  the  house  to  which 
they  are  sent,  ^nth  amendments,  additions,  or  provisos,  are  certified, 
under  the  certificate  of  the  other  house,  with  the  words,  a  cet  bill 
avecque  des  amendments,  or  avecque  les  amendments  a  mesme  le  bille 
annex,  or  avecque  un  proviso  annex,  or  avecque  un  schedule  annex, 
les  communes,  or  les  seignettrs,  as  the  case  may  be,  sont  assentifs, 
"  to  this  bill  with  amendments,"  or,  "  with  the  amendments  to  the 
same  annexed,"  or,  "  \Adth  a  proviso  annexed,"  or,  "  with  a  schedule 
annexed,  the  commons  "  or  "  the  lords,  have  agreed."  ^  If,  besides 
amendments,  a  biU  passes  with  additions  or  provisos,  or  both,  the 
certificate  is  varied  accordingly.  In  cases  of  this  kind,  the  amend- 
ments are  in  paper,  and  not  separately  certified ;  but  a  proviso  or 
schedule  is  in  parchment,  and  is  certified  as  a  new  bill,  soit  bailie 
aux  seigneurs,  or  aux  communs,  as  the  case  may  be. 

2281.  V.  Bills  of  the  second  class,  agreed  to  in  the  house  to 
which  they  are  sent,  without  amendment,  addition,  or  proviso.  In 
cases  of  this  kind,  the  bill  is  certified  with  the  words,  a  cet  bill 
avecque  un  proviso  annex,  or  avecque  un  schedule  annex,  les  communs^ 
or  les  seigneurs,  as  the  case  may  be,  sont  assentus.  The  proviso  or 
schedule  is  also  certified,  a  cet  proviso,  or  a  cet  schedule,  les  com' 
muns,  or  les  seigneurs,  as  the  case  may  be,  sont  assentus. 

2282.  VI.  Bills  of  the  second  class,  agreed  to  in  the  house  to 
which  they  are  sent,  with  amendments,  additions,  or  provisos.  In 
cases  of  this  kind,  the  bills  themselves,  and  the  additions  or  pro- 

i  Hackwell,  162;  Dwarris,  L  217,  218.  «  D'Ewes,  20,  26,  669;  Hackwell,  164, 166. 

«  HackweU,  154. 


Chap.  XVL]  authentication  op  bills.  885 

visos  filed  to  them  being  separately  certified,  on  passing  in  the 
house  in  which  they  originated,  when  passed  in  the  house  to  which 
they  are  sent,  with  amendments,  provisos,  or  additions,  they  are 
also  separately  certified  ;  as,  for  example,  a  cet  Mile,  or  a  cet  proviso, 
avecque  des  amendments,  or  avecque  vn proviso,  etc.,  les  commnns,  or 
les  seig-neurs,  sont  assentiis ;  the  rule  being,  that  every  engrossed 
proviso,  clause,  or  addition,  which  is  separately  certiiied,  is  to  be 
treated  as  a  separate  biU. 

2283.  When  a  bill,  which  has  passed  in  one  house,  is  passed  in 
the  other  with  amendments,  strictly  so  called,  which  are  agreed  to 
by  the  former,  the  clerk  of  that  house  thereupon  immediately  makes 
the  amendments  in  the  bill,  according  to  the  directions  in  the  paper.^ 
When  the  amendments  consist  of  engrossed  clauses,  provisos,  or 
addilions,  which  are  separately  certified,  the  agreement  of  the  house 
thereto  is  certified  in  the  same  manner  as  to  a  bill ;  if  such  provisos 
or  additions  are  agreed  to  with  amendments,  or  with  engrossed 
provisos  or  additions,  which  are  agreed  to,  the  proceedings  with 
reference  to  the  latter  are  the  same  as  if  they  had  been  made  to  a 
bill. 

2284.  It  is  supposed  to  be  the  general  practice,  in  our  legislative 
assemblies,  when  a  bill  is  ordered  to  be  engrossed,  to  engross  it 
with  every  thing  that  makes  a  part  of  the  bill,  whether  consisting 
of  amendments,  properly  so  called,  or  of  additions  and  provisos, 
T\Titten  out  at  length,  in  the  places  in  which  they  respectively  be- 
long in  the  bill ;  and  that  if  any  such  amendments  are  adopted 
afterwards,  which  make  it  necessary,  the  bill  is  rel-ngrossed  before 
it  is  sent  to  the  other  house ;  so  that  when  a  bill  is  sent  from  the 
house  in  which  it  originates,  to  the  other,  it  belongs  to  the  first  class 
above  mentioned.  It  is  supposed,  also,  that  when  bills  are  returned 
to  the  house  in  which  they  originate,  with  amendments,  the  latter 
are  included  in  a  single  schedule,  whether  they  consist  of  amend- 
ments, properly  so  called,  or  of  provisos  and  additions.  In  either 
case,  and  also  in  the  parliamentary  form,  if  that  is  adopted  in  any 
case,  or  prevails  generally,  the  certificate  of  a  bill,  mutatis  midandis, 
is  to  be  made  and  authenticated  by  the  clerk  in  English. 

1  Hackwell,  163, 167. 


886  LEGISLATIVE    ASSEMBLIES.  [PaET  VIIL 


CHAPTER     SEVENTEENTH. 

OF  COMMUNICATIONS  BETWEEN   THE   TWO    HOUSES,  RELATIVE   TO 

THE   PASSING   OF  BILLS. 

2285.  When  a  "bill  passes  in  the  house  in  which  it  originates,  it 
is  then  sent  to  the  other,  with  a  message,  requesting  the  concur- 
rence of  the  latter  thereto.^ 

2286.  When  a  bill,  originating  in  the  house  of  lords,  and  passed 
there,  is  sent  to  the  commons,  and  passes  also  in  that  house,  ymih- 
out  amendment,  a  message  is  sent  to  the  lords  returning  the  bill, 
and  to  acquaint  them  that  the  house  of  commons  has  agreed  to 
the  same  without  amendment.  When  a  bill,  originating  in  the 
house  of  commons,  and  passed  there,  and  sent  to  the  lords,  is  there 
passed  without  amendment,  the  bill  is  not  returned,  but  a  message 
is  sent  to  the  house  of  commons,  to  acquaint  them  that  the  lords 
have  agreed  to  the  bill,  without  amendment. 

2287.  When  a  bill,  originating  in  one  house,  and  passed  there, 
and  sent  to  the  other,  is  there  passed  with  amendments,  it  is  re- 
turned to  the  house  in  which  it  originated,  with  a  message,  to  ac- 
quaint that  house,  that  the  house  to  which  it  was  sent  has  agreed 
to  the  same  with  some  amendments,  to  which  the  latter  desires  the 
concurrence  of  the  former. 

2288.  K  it  is  the  house  of  commons  to  which  a  bill  is  thus  sent, 
with  amendments,  and  the  amendments  are  there  agreed  to,  the  bill 
is  returned  to  the  lords  with  a  message,  to  acquaint  them,  that  the 
commons  has  agreed  to  their  amendments  to  the  bill.  If  it  is  the 
house  of  lords  to  which  a  bill  is  sent  with  amendments,  which  are 
there  agreed  to,  the  bill  is  not  returned  to  the  commons,  but  a  mes- 
sage is  sent  to  inform  them  that  the  lords  have  agreed  to  their 
amendments. 

2289.  A  bill  can  only  be  taken  to  the  lords  from  the  house  of 
commons,  when  the  latter  is  sitting ;  for  when  the  bill  is  ready,  the 
member,  who  has  been  ordered  to  carry  it  to  the  lords,  takes  the  bill 
off  the  table,  and  holds  it  up  in  his  hands,  opposite  the  door,  till  the 
speaker  directs  the  members  to  attend  their  messenger.  The  rule 
and  practice  of  the  house  of  lords  is,  to  receive  no  message  from 
the  commons,  unless  eight  members  at  least  attend  \viih.  it.     When 

1  Bills,    which   have    been  passed  in   one     other,  be  examined  by  a  committee  appointed 
house,  should,  before  they  ai-e  sent  to  the     for  the  purpose.    See  J.  of  S.  I.  401. 


Chap.  XVIL]    relative  to  the  passing  of  bills.  887 

biUs  have  passed  in  Ihe  house  of  commons,  with  a  general  concur- 
rence, and  on  other  occasions  on  which  the  house  of  commons 
wishes  to  have  an  opportunity  of  showing  its  approbation  of  the 
measure,  it  is  customary  for  a  great  numljer  of  meml;('rs  to  follow 
their  messengers.  The  member  ordered  to  take  the  bill  to  the  lords 
ought  to  carry  it  there  immediately,  and  if  the  lords  be  not  then 
sitting,  he  ought  to  bring  it  back  to  the  clerk ;  in  case  of  such  mem- 
ber's absence,  another  may  be  appointed  in  his  place.^ 

2290.  It  will  be  perceived  from  the  foregoing  statement  of  the 
communications  between  the  two  houses  relative  to  the  passing  of 
bills,  that  bills  when  agreed  to  l)y  both  houses  remain  in  the  house 
of  lords.  This  is  the  case  with  all  except  money  bills,  the  concur- 
rence in  which  is  signified  in  the  usual  manner,  but  which  are 
always  returned  informally  to  the  house  of  commons  without  any 
message,  for  the  purpose  of  being  presented  by  the  speaker.^ 

2291.  The  communications  between  the  two  houses  of  parlia- 
ment, relative  to  the  passing  of  bills,  are  always  by  message,  until 
there  is  a  disagreement  by  one  house  to  the  amendments  of.  the 
other ;  in  which  case  the  communication  is  made  by  means  of  a 
conference.  In  this  country,  as  we  have  seen,  they  take  place  by 
message  only.  These  proceedings  have  been  already  explained  in 
connection  with  the  subject  of  amendments  between  the  t^vo 
houses.  Messages  and  conferences,  relative  to  bills,  take  place  in 
the  same  manner  as  with  reference  to  other  matters. 

2292.  In  those  of  our  legislative  assemblies,  in  which  it  is  re- 
quired, by  the  constitution,  that  every  biU,  before  it  becomes  a  law, 
shall  receive  the  executive  approval,  and  in  which,  consequently, 
bills  must  be  duly  presented  to  the  executive  department,  it  is  sup- 
posed, that  all  bills,  until  sent  out  of  the  house  for  approval,  remain 
in  the  house  in  which  they  were  last  agi-eed  to.  It  is  not  the  usage, 
for  one  of  the  two  houses  of  a  legislative  body  to  inform  the  other 
by  what  numbers  a  bill  has  passed ;  ^  nor  where  a  bill  from  the 
other  house  has  been  rejected,  does  the  house,  in  wMch  the  pro- 
ceeding takes  place,  give  the  other  any  notice  of  the  rejection,  or 
returns  the  bill  to  that  house ;  but  the  matter  passes  sub  silentio  to 
prevent  unbecoming  altercations.'*  This  is  the  ordinary  rule  of 
parliamentary  practice,  subject,  of  course,  to  such  particular  regula- 
tion as  each  assembly  may  prescribe.  In  congress,  it  is  provided, 
that,  "  when  a  bill  or  resolution  which  shall  have,  passed  in  one 

»  Brnmwen  on  Bills,  139,  141,  145,  146.  «  Grey,  X.  150. 

«  May,  369.   See  Hatsell,  III  161, 162.  *  Black.  Com.  I.  133. 


888  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIII. 

house,  is  rejected  in  the  other,  notice  thereof  shall  be  given  to  the 
house  in  which  the  same  shall  have  passed."  It  is  the  practice 
under  this  rule,  v^hen  a  bill,  passed  in  one  house  and  sent  to  the 
other,  is  there  disposed  of  permanently,  although  not  by  a  technical 
vote  of  rejection,  to  retmn  the  biU  and  notify  the  originating  house 
of  such  rejection,  by  means  of  a  message ;  as  when  the  question 
on  any  of  the  regular  stages  of  a  bill,  is  decided  in  the  negative,  or 
when  the  bill  is  postponed,  either  indefinitely,  or  to  a  day  beyond 
the  session.     The  rule  appears  to  extend  to  vetoed  bills.i 

2293.  It  is  usually  provided,  by  rule,  in  our  legislative  assem- 
blies, as  it  is  by  a  joint  rule  in  congi-ess,  that,  while  bills  are  on 
theii-  passage  between  the  two  houses,  they  shall  be  under  the  sig- 
nature of  the  clerk  of  each  house,  respectively ;  and  without  any 
rule  to  this  ejETect,  it  seems  to  be  a  part  of  the  duty  of  the  clerk,  to 
authenticate  all  papers,  when  passing  between  the  two  houses,  by 
his  signature ;  but,  in  the  absence  of  any  rule  or  usage,  in  this 
respect,  it  seems  that  every  bill  or  other  paper  is  sufficiently  authen- 
ticated by  the  message  which  accompanies  it. 

2294.  If  messengers,  as  we  have  seen,^  commit  an  error  in  deliv- 
ering their  message,  and  the  mistake  is  seasonably  discovered,  they 
may  be  admitted  of  their  own  accord,  or  may  be  called  in  by  the 
house  to  which  they  are  sent,  to  correct  their  mistake.^  But  this 
practice,  though  equally  applicable  to  messages  on  bills,  is  not 
likely  to  extend  to  any  errors  in  the  contents  of  bills  and  amend- 
ments, which  are  not  ordinarily  stated  in  the  message,  or  ofhciaUy 
known  to  the  messengers.  IViistakes  of  this  kind,  which  are  not 
discovered  at  the  time,  or  do  not  then  admit  of  correction,  may  be 
the  subject  of  a  subsequent  message,  and  corrected  accordingly. 

1  J.  of  S.  n.  337 ;  J.  of  H.  IX.  705.  »  Grey,  IV.  41 ;  Jefferson's  Manual,  §  XLVIL 

»  See  ante,  §  818. 


Chap.  XVIIL]  commencement  of  bill.  889 


CHAPTER    EIGHTEENTH. 

OF  BILLS    WHICH   AUK    KKCiUIKKD   TO   BE    COMMENCED   IN   ONE 
HOUSE  IN  rilEFEllENCE  TO  THE  OTHER. 

2295.  It  is  a  general  principle  of  parliamentary  law,  which  pre- 
vails in  England,  and  in  this  country,  with  certain  exceptions, 
which  will  be  presently  mentioned,  ihat  all  bills  may  be  commenced 
in  either  house,  and  may  be  concurred  in,  amended,  or  rejected,  by 
the  other.  This  principle  is  inserted  in  several  of  the  State  consti- 
tutions, but  is  clearly  unnecessary.^  The  exceptions,  which,  in  par- 
liament, are  the  result  of  precedent  and  usage  only,  are,  in  this 
country,  the  result  of  constitutional  provision,  and  are  now  to  be 
considered. 

2296.  From  considerations  of  convenience,  bills  concerning 
either  house  of  parliament,  exclusively,  usually  begin  in  the  house 
whose  proceedings  are  intended  to  be  aflected  thereby.-  This  rule, 
though  not  a  matter  of  right,  is  so  obviously  convenient,  that  it 
would  undoubtedly  be  held  applicable  here. 

2297.  The  lords  claim  exclusive  right  of  originating  bills  for  res- 
titution of  honors  or  blood ;  and  in  that  house,  estate  bills,  divorce 
bills,  bills  of  attainder,  and  of  pains  and  penalties,  and  others  of  a 
judicial  nature,  generally  begin ;  in  consequence,  it  is  presumed,  of 
the  forms  of  judicature  possessed  by  that  house  exclusively .^ 

2298.  The  sovereign  claims  and  exercises  the  privilege  of  intro- 
ducing a  bill,  which  usually  passes  in  every  parliament,  or  for  a  gen- 
eral pardon.  This  is  an  exception  to  the  common  practice  of  pass- 
ing bills ;  being  sent  by  the  crown,  and  read  only  once  in  each 
house.  A  bill  of  this  kind  receives  the  royal  assent,  after  it  has 
passed  both  houses,  in  the  ordinary  form.* 

2299.  The  house  of  commons  by  precedent  and  usage,  particu- 
larly since  the  time  of  the  restoration,  has  asserted  and  maintained 
its  right  to  begin  bills  of  supply,  and  all  other  bills  for  imposing  any 
pecuniary  charge  or  burden  upon  the  people  ;  and  the  house  of 
lords  has  now  for  many  years  desisted  either  from  beginning  any 
bill,  or  from  making  amendments  to  any  past  in  the  other  branch, 

1  Maryland,  Virginia,  South  Carolina,  Ala-  •  Bramwell  on  Bills,  3. 

bama,  Mississippi,  Tennessee,  Ohio,  Indiana,  *  Bramwell  on  Bills,  2. 

Illinois,  Missouri,    Arkansas,    Texas,    Iowa,  *  May,  345. 
■Wisconsin,  California. 

75 


S9D  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

which  either  in  the  form  of  positive  taxes,  or  pecuniary  penalltes, 
or  in  any  other  shape,  might  by  construction  be  considered  as  im- 
posing burdens  upon  the  people.^ 

2300.  This  rule  extends  in  practice  to  all  bills  and  provisions  in 
bills  aftecting  the  pubUc  revenue ;  to  all  such  as  impose  any  rate, 
toll,  or  duty,  pecuniary  penalty,  fine,  or  fee ;  and  to  all  biUs  contain- 
ing provisions  which  in  their  consequences  necessarily  increase  or 
diminish  any  previously  existing  rate,  toll,  or  duty  ;  but  it  does  not 
extend  to  bills  for  imposing  or  removing  personal  disabilities,  inca- 
pacities, or  punishments.2 

2301.  The  constitutional  power  of  the  house  of  commons  to 
originate  bills  of  the  above  description,  without  any  interference  on 
the  part  of  the  lords,  has  occasionally  been  abused  by  annexing  to 
bUls  of  supply  enactments  which  in  another  bill  would  be  rejected 
by  the  lords ;  but  which  being  contained  in  a  bill  that  they  have  no 
rio-ht  to  amend,  must  either  be  suffered  to  pass  unnoticed,  or  cause 
the  rejection  of  a  measure  highly  important,  perhaps,  for  the  public 
service.  Such  a  proceeding,  under  the  name  of  tacking,  is  a  great 
infringement  of  the  privileges  of  the  lords ;  and  has  been  resisted 
by  protest,  by  conference,  and  by  the  rejection  of  the  objectionable 
bills.  It  was  in  reference  to  this  practice,  that  the  lords  on  the  9th 
of  December,  1702,  passed  a  standing  order,  that  the  annexing  of 
any  clause  to  bills  of  aid,  the  matter  of  which  is  foreign  to  and 
different  from  the  matter  of  such  bill,  is  unparliamentary,  and  tends 
to  the  destruction  of  the  constitution.  There  have  been  no  recent 
occasions  on  which  clauses  have  been  irregularly  tacked  to  biUs  of 
supply,  but  so  lately  as  1807,  the  standing  order  above-mentioned, 
was  read,  and  a  bill  rejected  on  that  account  in  the  house  of 
lords ;  but  in  that  case  the  clause  had  been  inadvertently  inserted, 
and  it  was  doubtful  w  hether  it  was  a  tack  within  the  intention  of 
the  standing  order.^ 

2302.  When,  through  inadvertence  in  the  framers  of  a  bill,  or  in 
the  addition  of  amendments  to  any  bill  of  the  house  of  commons, 
it  happens  that  this  rule  is  invaded,  the  latter  is  very  vigilant  in 
noticing  it,  and,  thereupon  the  further  consideration  of  such  bill,  or 
of  the  lords'  amendments,  is  put  off  for  the  session,  allowing,  how- 
ever, a  fresh  bill,  as  passed  by  the  lords,  to  begin  de  novo  in  the 
commons.''  Sometimes  the  amendments  of  the  lords,  though  not 
strictly  regular,  do  not  appear  materially  to  infringe  the  privileges 

1  Hatsell,  126,  147,  154 ;  Comm.  Jour.  IX.         »  May,  409,  410. 
338.  ■*  Bramwell  on  Bills,  5, 

s  BramweU  on  Bills,  1,  2. 


Crap.  XVIIL]  commencement  of  bill.  891 

of  the  commons,  in  which  case  it  has  been  usual  to  agree  to  them, 
with  specikl  entries  in  the  journal.  The  commons  have,  also,  by 
standing  orders  passed  in  1831  and  1849,  somewhat  relaxed  the 
rule,  by  providing  that  this  house  will  not  insist  on  its  ancient  and 
undoubted  privileges,  when  the  object  of  such  forfeiture  is  to  secure 
the  execution  of  the  act ;  or  where  fees  are  imposed  in  respect  of 
benefit  taken,  or  service  rendered  under  the  act;  or  when  it  is  a 
private  bill  for  a  local  or  personal  object. ^ 

2303.  The  constitutional  privilege,  above  mentioned,  in  virtue  of 
which,  it  is  the  practice  of  the  house  of  commons  to  originate 
taxes,  has  been  extensively  copied  in  this  country  ;  a  corresponding 
provision  being  found  inserted  in  all  our  constitutions,  except  in 
those  of  the  following  States,  namely,  Rhode  Island,  Connecticut, 
New  York,  Maryland,  Virginia,  North  Carolina,  Florida,  Tennes- 
see, Ohio,  Illinois,  Michigan,  Ai-kansas,  Wisconsin,  and  California. 
In  the  constitutions  of  the  United  States,  and  of  the  States  of 
Maine,  New  Jersey,  Pennsylvania,  Delaware,  South  Carolina, 
Georgia,  Alabama,  Mississippi,  Louisiana,  Kentucky,  Indiana, 
Missouri,  and  Texas,  the  language  is,  "  that  all  bills  for  raising 
revenue  "  shall  originate  in  the  house  of  representatives ;  in  those 
of  New  Hampshire  and  Massachusetts,  it  is  that  "  all  money  bills  " 
shall  originate  in  the  house  of  representatives ;  in  that  of  Vermont 
"  all  revenue  bills,"  and  in  that  of  "  Iowa  all  bills  for  revenue  are 
required  to  originate  in  the  house  of  representatives ; "  and  in  that 
of  Georgia,  the  words,  "  or  appropriating  moneys,"  are  added  to 
the  requisition  already  made.  In  all  the  constitutions  in  which  it 
is  provided  substantially  that  taxes  shall  originate  in  the  lower 
branch,  it  is  provided  that  the  senate  or  first  branch  may  propose 
or  concur  therein  Wth  amendments,  as  on  other  bills,  thus  prevent- 
ing the  process  of  tacking ;  but  in  Maine,  Louisiana,  and  Ken- 
tucky, it  is  provided,  further,  that  the  senate  shall  not,  under  color 
of  amendments,  introduce  any  new  matter  which  does  not  relate  to 
raising  a  revenue.  The  constitution  of  Delaware  contains  a  simi- 
lar provision  in  substance. 

2304.  It  will  be  perceived  from  the  foregoing  enumeration,  that 
the  clauses  relative  to  taxation  are  divisible  into  two  classes, 
namely,  first,  those  which  relate  to  raising  revenue  only,  and  second, 
those  which  embrace  both  the  raising  and  spending  of  money. 
The  constitution  of  Delaware  is  the  only  one  which  undertakes  to 
define  a  revenue  bill ;  it  declares  that  "  no  bill,  from  the  operationa 

1  May,  407,  408,  409. 


892  LEGISLATIVE   ASSEMBLIES.  [PaRT   VIII. 

of  which,  when  passed  into  a  law,  revenue  may  incidentally  arise, 
shall  be  accounted  a  bill  for  raising  revenue."  This  is  so  obvi- 
ously the  proper  signification  of  the  word  revenue,  that  it  would 
probably  be  admitted  as  conveying  the  true  meaning ;  rejecting  the 
parliamentary  meaning  of  the  term,  by  which  penalties  and  for- 
feitures taken  from  the  subject  are  accounted  a  revenue,  whether 
they  go  into  the  public  treasury  or  not.  The  term,  "  money  bills," 
as  used  in  the  constitutions  of  New  Hampshire  and  Massachusetts, 
are  broad  enough  to  include  both  the  raising  and  the  appropriation 
of  money.  Whether  the  senate  in  amending  a  biU  of  the  house, 
so  as  to  make  it  a  biU  for  raising  revenue,  transcends  its  constitu- 
tional powers,  or  not,  is  a  question  of  constitutional  right,  between 
the  t>Ar-o  houses,  and  not  of  order  or  privilege.^ 


CHAPTER   NINETEENTH. 

OF  THE  RULE  WHICH  PRECLUDES  THE  SAME  QUESTION  FROM 
BEING  A  SECOND  TIME  PRESENTED  DURING  THE  SAME  SESSION, 
IN  ITS   APPLICATION  TO   BILLS. 

2305.  It  is  a  rule  of  parliamentary  practice,  which  has  akeady 
been  generally  considered,  that  no  question  or  motion  can  regularly 
be  offered,  upon  which  the  judgment  of  the  house  has  been  ex- 
pressed during  the  current  session.  This  rule  is  essential,  in  order 
to  avoid  contradictory  decisions,  to  prevent  surprise,  and  to  afford 
proper  opportunity  for  determining  questions  as  they  severally  arise.^ 
It  is  equally  essential,  however,  that  the  discretion  of  the  house 
should  not  be  so  far  confined  by  its  rules  of '  proceeding,  as  to 
subject  its  votes  to  irrevocable  error,  or  to  prevent  it  from  changing 
its  determinatioji,  when  such  change  is  clearly  proper  and  nec- 
essary. 

2306.  The  constitution  of  a  deliberative  assembly  is  necessarily 
such,  that  it  may  occasionally  be  constrained  by  its  own  rules  to 

1  T.  of  H.  27th  Cong.  2d  Ses?.  287.  in  a  modified  form.    That  of  Tennessee  pro- 

2  May,  233.     The  principle  of  parliament-  vides  tliat  "  after  a  bill  has  been  rejected,  no 
ary  law  elucidated  in  this  chapter,  is  inserted  bill  containing  the  same  substance,  shall  be 
in  the  constitutions  of  Tennessee  and  Texas,  passed  into  a  law  during  the  same  session." 
and  in  those  of  South  Carolina  and  Georgia, 


Chap.  XIX.]  kule  as  to  the  same  bill.  893 

come  to  a  determination,  which  does  not  express  its  deliberate 
sense ;  but  if  such  a  determination  could  not,  under  any  circum- 
stances, be  reconsidered  and  rescinded,  the  rules  of  proceeding 
would  be  the  means  of  obstructing,  rather  than  facilitating,  the  will 
of  the  assembly.  Hence,  while  the  rule  above  alluded  to  is  recog- 
nized as  a  general  one,  it  admits  of  such  exceptions,  and  is  applied 
in  such  a  manner,  that  the  discretion  of  the  assembly  is  not  thereby 
unnecessarily  restrained.  As  it  is  in  reference  to  bills,  and  the 
proceedings  upon  and  in  relation  to  them,  that  this  rule  receives  its 
most  important  application,  it  is  proposed  to  give  it  a  separate 
consideration  in  this  place. 

2307."  The  rule  is  thus  expressed  in  a  declaration  of  the  house  of 
lords,  entered  in  the  journal  of  May  17,  1606  :  "  That  when  a  bill 
hath  been  brought  into  the  house,  proceeded  withal,  and  rejected, 
another  bill  of  the  same  argument  and  matter  may  not  be  renewed 
and  begun  again,  in  the  same  house,  and  in  the  same  session."  ^ 
En  the  house  of  commons,  "  it  was  agreed  for  a  rule,"  June  1,  1610, 
"  that  no  bill  of  the  same  substance  be  brought  in  the  same  ses- 
sion." 2  Neither  of  these  statements  fully  expresses  the  rule,  as  un- 
derstood in  the  practice  of  the  present  day.  It  is  not  now  neces- 
sary, for  example,  if  it  ever  was,  to  the  application  of  the  rule,  that 
a  bUl  should  be  rejected,  as  expressed  in  the  rule  of  the  lords  ;  inas- 
much as  a  new  bill  carmot  be  introduced,  while  a  similar  bill  is 
pending,  or  has  passed.  Nor  does  the  rule  apply  only  to  the  intro- 
duction of  bills,  as  might  be  supposed  from  the  statement  of  it  by 
both  houses ;  since  it  equally  precludes  those  motions,  which  at  the 
present  day,  are  preliminary  to  the  introduction  of  biUs.  Neither 
does  it  require  the  pendency  of  a  bill,  in  order  that  the  judgment 
of  the  house  may  be  expressed  in  such  a  manner,  as  to  preclude 
the  introduction  of  the  subject  a  second  time ;  a  judgment  of  the 
house  upon  a  motion  for  a  bill  being  equally  effectual  to  preclude 
the  introduction  of  a  bill,  as  a  judgment  upon  the  bUl  itself. 

2308.  In  explaining  this  rule,  it  will  be  most  convenient  to  con- 
sider it  with  reference  to  the  several  circumstances,  in  which  occa- 
sion may  arise  for  its  application.  At  the  same  time,  it  will  be 
useful  to  point  out  the  limitations  and  restrictions,  to  which  it  is 
wubject,  mth  a  view  to  enable  the  house  to  reconsider,  and,  if  nec- 
essary, to  rescind  a  prior  determination.  The  several  steps  in  the 
proceedings  with  reference  to  bills,  to  which  it  is  necessary  to  call 
attention,  in  order  to  explain  the  rule  in  question,  are :  1,  when  a 

1  Lords'  Jour.  IL  435.  •  Comm.  Jour.  I  434. 

75* 


891:  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

motion  for  a  bill  has  been  affirmed  or  denied ;  2,  when  a  bill  is 
pending;  3,  when  a  bill  has  been  rejected  ;  and,  4,  when  a  bill  has 
been  passed.  It  is  proposed,  in  the  first  place,  to  make  some  pre- 
liminary observations  appUcable  to  the  general  subject,  and  then,  to 
consider  the  rule  in  question  with  reference  to  the  different  occa- 
sions above  indicated  for  its  application. 

Section  I.     Of  the  Application  of  the  Hule  in  general. 

2309.  The  terms  made  use  of  to  indicate  the  identity  or  simi- 
larity of  two  propositions,  namely,  "  of  the  same  argument  and 
matter,"  and  "  of  the  same  substance,"  which  signify  the  same 
thing,  clearly  imply,  that  if  the  propositions  in  question  are  the 
same  in  substance  and  effect,  however  different  in  form,  they  are 
within  the  rule.  Where  the  house  has  merely  come  to  a  vote, 
either  rejecting  or  allowing  a  motion  for  the  introduction  of  a  bill, 
and  a  motion  is  afterwards  made,  which  is  objected  to  on  the 
ground  of  its  identity  with  the  former,  the  question  must  be  deter- 
mined by  comparing  together  the  two  propositions  as  they  stand ; 
although  if  biUs  should  be  introduced  in  pursuance  of  the  two,  they 
might  be  materially  different  from  each  other.  Thus,  where  a  mo- 
tion was  made  for  leave  to  bring  in  a  bill  "  to  reheve  from  the  pay- 
ment of  church-rates  that  portion  of  her  majesty's  subjects  who 
conscientiously  dissent  from  the  established  church,"  which  was 
decided  in  the  negative,  a  motion  subsequently  made  "  to  reheve 
dissenters  from  the  established  church  from  the  payment  of  church- 
rates,"  was  considered  to  be  within  the  rule,  and  consequently  inad- 
missible, on  the  ground,  that  the  two  propositions,  though  different 
in  form  and  words,  were  substantially  the  same.^ 

2310.  When  a  bill  is  aheady  pending,  and  a  motion  is  made  for 
leave  to  introduce  a  similar  bill,  the  question  to  be  determined  is, 
whether,  if  the  motion  should  be  adopted,  it  would  authorize  the 
introduction  of  a  bill  substantially  the  same  with  that  aheady  pend- 
ing ;  if  it  would,  then  the  motion  is  contrary  to  the  rule. 

2311.  When  it  becomes  necessary  to  institute  a  comparison 
between  the  different  provisions  of  two  bills,  which  are  aheady 
drawn,  it  may  appear,  that,  although  intended  for  the  same  purpose, 
and  consequently  "  of  the  same  substance,"  and  "  of  the  same 
argument  and  matter,"  in  one  sense,  they  nevertheless  differ  so 
essentially  in  the  mode  and  means,  by  which  that  purpose  is  to  be 

1  Hans.  (3),  653. 


Chap.  XIX.]  rule  as  to  the  same  bill.  895 

effected,  as  to  be  in  substance  different  bills.  In  such  a  case,  the 
judgment  of  the  house  against  one  of  the  bills,  that  is,  against 
effecting  a  particular  object  in  a  particular  manner,  ought  not  to  pre- 
clude it  from  entertaining  the  other,  which  proposes  to  effect  the 
same  object  in  a  different  manner.  Thus,  a  bill  which  creates  a 
new  offence,  and  punishes  it  in  one  manner,  ought  not  to  be  con- 
sidered as  the  same  in  substance  with  a  bill  which  creates  The  same 
offence,  and  punishes  it  in  a  different  manner.  The  identity  or 
similarity,  therefore,  which  is  implied  in  the  rule  in  its  application 
to  bills,  would  be  more  fully  expressed,  in  the  following  form, 
namely ;  that  two  bills  are  the  same  when  they  have  the  same  pur- 
pose in  view,  and  propose  to  effect  it  by  the  same  means,  although, 
in  point  of  phraseology,  they  may  be  expressed  in  different  terms  ;i 
and,  this,  it  is  apprehended,  will  be  found  to  be  in  accordance  with 
the  practice  of  both  houses. 

2312.  It  does  not  seem  to  be  essential  to  the  application  of  the 
rule,  that  the  proposition  already  passed  upon  should  have  received 
the  judgment  of  the  house  by  itself,  provided  it  is  distinct  from  any 
other  proposition,  with  which  it  might  have  been  accompanied ;  or 
that  the  new  one  should  be  made  by  itself,  provided  it  is  distinct 
from  and  independent  of  any  other,  in  company  with  which  it  may 
be  brought  forwards ;  -  thus,  where  the  house  of  commons,  having 
passed  a  bill  Avhich  was  rejected  by  the  lords,  or  rather  passed  by 
them  with  amendments  to  which  the  commons  did  not  agree, 
inserted  the  same  bill  as  a  proviso  in  another  bill  of  a  different 
character,  this  proceeding  was  held  to  be  contrary  to  the  known 
and  constant  methods  of  parliament.'^ 

2313.  The  general  rule  being,  as  already  stated,  that  no  question 
can  be  a  second  time  moved,*^  upon  which  the  judgment  of  the 
house  has  already  been  expressed,  it  follows,  not  only  that  no  reso- 
lution or  biU  can  be  introduced,  which  proposes  to  do  what  the 
house  has  declared  shall  not  be  done,  but  also  that  no  two  reso- 
lutions, nor  any  two  bills,  contradictory  to  each  other,  can  be  passed 

>  Han=.  (1),  X.  1344.  ever,  of  a  procee'lin?  so  contrary  to  the  rules 
«  Hatsell,  II.  125,127;  Pari.  Reg.  XXX \a.  and  methods  of  parliament." 
223.  *  The  ride,  when  stated  broadly  and  fnlly, 
'  Lords'  Join-.  XV.  90.  The  house  of  lords,  may  be  thus  expressed,  namely:  that  when 
deeming  it  necessary  nevertheless,  (for  the  the  house  has  already  done  a  particular  thing, 
public  welfare,)  to  pass  the  bill,  directed  a  that  thing  can  neither  be  imdone,  nor  other- 
special  entry  to  be  made  in  the  journal,  "  for  wise  done;  and  that  when  the  house  has 
a  record  to  all  posterity',  that  they  will  not  refused  to  do  a  particular  thing,  that  thing 
hereafter  admit,  upon  any  occasion  whatso-  cannot  be  done. 


896  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

in  the  same  session ;  ^  and,  consequently,  that  no  motion  or  propo- 
sition, preliminary  to  such  contradictory  legislation,  can  oe  regularly 
introduced.^ 

2314.  The  judgment  of  one  house  being  obligatory  only  upon 
itself,  and  its  own  members,  it  follows,  that  the  application  of  the 
•rule  in  question  is  confined  to  the  house  in  which  the  previous  pro- 
ceeding has  taken  place,  and  to  the  members  of  that  house.  Thus, 
if  a  bill  is  pending,  or  has  been  rejected  in  one  house,  the  same  bill, 
that  is,  a  bill  of  the  same  tenor,  may  nevei-theless  be  introduced  in 
the  other ;  inasmuch  as  the  latter  has  not  as  yet  come  to  any  judg- 
ment upon  that  or  a  similar  bill.  If  such  bill  passes  in  the  house 
in  which  it  is  begun,  it  may  be  sent  from  that  house  to  the  other, 
and  so  introduced  in  that  house,  although  a  similar  bill  is  there 
pending,  or  has  been  passed,  or  rejected ;  because  the  judgment  of 
that  house  is  obligatory  only  to  prevent  the  introduction  of  such  a 
bill  by  its  own  members,  but  not  to  its  introduction  from  the  other 
house,  which  is  an  independent  and  coordinate  branch.  If  the 
introduction  of  a  bill  from  the  other  house,  in  this  manner,  cannot 
be  objected  to,  on  the  ground  of  order,  so  neither  can  its  being  pro- 
ceeded upon  and  passed.  Whether  the  house,  to  which  it  is  sent, 
having  already  expressed  its  opinion  by  rejecting  a  similar  bUl,  or 
having  a  similar  bill  then  under  consideration,  will  reconsider  its 
judgment,  and  pass  the  bOl  thus  sent,  is  a  question  yvhich  does  not 
depend  upon  the  order  or  method  of  proceeding. 

2315.  It  is  wholly  immaterial  in  what  form  it  is  proposed  a 
second  time  to  bring  forward  a  question  which  has  already  been 
decided ;  as,  for  example,  it  is  not  allowable  to  move  an  amend- 
ment to  a  pending  bill,  which,  if  adopted,  wiU  render  the  bill  the 
same  with  one  which  has  already  been  rejected  or  passed.^ 


Section  II.    Of  the  Application  of  the  Kule,  when  leave  has 

BEEN   GIVEN    OR  REFUSED,    OR   AN    OrDER    MADE   OR    REJECTED,  TO 
PREPARE   AND   BRING   IN   A   BiLL   FOR  A   PARTICULAR  PURPOSE. 

2316.  When  the  judgment  of  the  house  has  been  expressed  in 
this  form,  no  motion  or  order  can  afterwards  be  made  for  a  similar 
bill.  But,  when  a  bill  has  thus  been  authorized,  it  is  competent  for 
the  house,  nevertheless,  to  discharge  the  order ;  ^  in  which  case,  the 

1  Pari.  Reg.  XX VH.  679.  »  Hans,  (l^,  X.  1344. 

«  Comm,  Jour.  XIX.  639.  *  HatseU.lI.  133. 


Chap.  XIX.]  rule  as  to  tub  same  bill,  897 

effect  of  it  is  entirely  done  away  with,  and  a  new  order  may  after- 
wards be  made  in  the  same  or  a  different  form.  When  a  motion 
for  leave  to  bring  in  a  bill  has  been  rt^'ected,  the  same  subject  may 
again  be  brought  forward,  in  a  different  form  ;  as,  for  example,  by 
moving  the  appointment  of  a  committee  to  consider  the  laws  relat- 
ing to  that  subject.^  In  this  case,  however,  it  will  still  be  for  the 
house  to  determine,  when  the  contemplated  measure  is  brought 
forward,  —  either  in  the  committee  or  the  house,  —  whether  it  inter- 
feres with  the  judgment  already  expressed.'- 


Section  IIL     Of  the  Application  of  the  Rule  whilst  a  Bill 

is  pending. 

2317.  When  a  bill  has  been  introduced,  and  is  pending,  no  other 
of  the  same  substance  can  be  moved  for  or  introduced.  A  bill  is 
pending,  until  it  has  been  rejected ;  or  until  a  negative  has  been  put 
upon  some  one  of  the  motions  necessary  to  forward  it,  which  is 
equivalent  to  ja  rejection,  as,  for  example,  that  it  be  read  a  second 
or  a  third  time,  or  that  it  be  engrossed  or  passed ;  or,  until  the 
house,  by  a  diiect  vote,  has  declared  that  it  will  no  longer  pro- 
ceed with  the  bUl,  as  where  it  is  ordered  to  be  withdrawn  or  laid 
aside. 

2318.  A  negative,  put  upon  a  motion  for  proceeding  with  a  bill, 
in  pursuance  of  a  previous  order,  is  not  equivalent  to  a  rejection : 
because  it  leaves  the  order  still  in  force,  to  be  proceeded  upon,  if 
the  house  pleases,  at  some  other  time.  Thus,  if  a  bUl  is  read  a  first 
time,  and  a  motion  made  that  it  be  read  a  second  time,  which  is 
negatived,  the  bill  is  as  effectually  rejected  as  it  could  be  upon  a 
direct  motion  for  that  purpose.  But,  if  the  motion  for  second  read- 
ing is  carried,  and  a  day  is  then  fixed  for  the  second  reading,  and, 
on  that  day,  a  motion  for  the  present  reading  of  the  bill  is  made 
and  negatived,  this  negative  is  not  equivalent  to  a  rejection ;  for 
the  order,  that  the  bill  be  read  a  second  time  is  stUl  in  force,  and 
the  house  may  proceed  upon  it  at  any  future  time. 

2319.  A  bill  is  also  considered  to  be  pending,  when  the  proceed- 
ing upon  it  has  been  postponed  to  a  day  beyond  the  probable  dura- 
tion of  the  session.^     In  this  case,  the  order  relative  to  the  bill  is. 


1  May,  187.  and  defeating  a  bill;  and  it  is  entirely  effect- 

*  Hans.  (1),  XHI.  765,  769.  ual  for  that  pnrpose,  so  long  as  tlie  order  for 

'  This  is  a  mode,  more  frequently  adopted  postponement  remains  in  force.     But  it  seems, 

than  any  other,  for  expressing  opposition  to  that  this  order  may,  at  any  time,  be  dis- 


898  LEGISLATIVE   ASSEMBLIES.  [PaRT    VITI 

that  it  be  read  the  second,  or  third  time,  etc.,  on  a  day  fixed,  on 
which  the  house  may,  possibly,  though  it  is  not  likely  to  be,  sitting. 
If  the  postponement  should  be  to  a  day  beyond  the  possibility  of 
the  continuance  of  the  session,  —  as  for  example,  to  a  day  beyond 
the  term  of  the  legal  existence  of  the  parliament,  —  such  a  post- 
ponement could  hardly  be  considered  in  any  other  light  than  as  a 
rejection. 

2320.  When  it  becomes  desirable  or  necessary,  as  frequently 
happens,  to  introduce  a  new  biU  of  the  same  substance  with,  and 
in  place  of,  one  aheady  pending,  this  can  only  be  done  by  withdraw- 
ing the  latter,  if  it  is  a  bill  of  the  house  in  which  it  is  pending,  or 
by  laying  it  aside,  if  it  originated  in  the  other  house.  These  pro- 
ceedings will  be  fuUy  described  hereafter. 

Section  IV.     Of  the  Application  of  the   Rule   when  a   Bill 

HAS   been  rejected. 

2321.  When  a  bill  has  been  rejected  in  any  of  its  stages,  in  the 
house  in  which  it  originated,  the  same  bill  cannot  be  again  intro- 
duced in  the  same  house ;  but  a  new  biU,  which  really  presents  a 
different  question,  or  the  same  question  in  a  modified  form,  how- 
ever slight  the  difference  or  modification  may  be,  is  not  objection- 
able in  point  of  order.  Hence,  in  matters  of  considerable  importance, 
in  reference  to  which  the  opinion  of  the  house  has  undergone  a 
change,  some  tiifling  variation  in  the  question  has  been  deemed 
sufficient  to  prevent  the  operation  of  the  rule.^ 

2322.  When  a  bill  which  has  been  passed  in  one  house,  and  sent 
to  the  other,  is  there  rejected,  it  is  according  to  the  established  par- 
liamentary usage,  "  that  a  new  bill  of  the  same  matter  may  be 
drawn  and  begun  again  in  that  house  whereunto  it  was  sent ; "  ^  and 
such  bill,  being  passed  in  the  house  in  which  it  is  begun,  and  sent 
to  the  other,  may  be  there  proceeded  upon  and  passed.-^  The  rule, 
as  thus  stated,  seems  to  imply  that  the  new  bill  differs  from  the 
old  one,  so  far  at  least  as  to  be  free  from  the  objections  which  were 

charged;  and,  when  discharged,  although  it  " skins  and  tanned  hides  "  in  the  place  of  the 

cannot  he  renewed  for  an  earlier  day,  the  bill  word  "leather,"  of  which,  Mr.  Speaker  0ns- 

may  be  withdrawn,  and  a  new  one  ordered  low  remarks,  that  "  the  method  here  spoken 

and  presente.dj-and  forwarded  in  the  ordinary  of  to  recover  the  loss  of  the  former  question 

manner.  was    unparliamentary,   and    dangerous,    and 

1  Hatsell,  n.  125,  128,  and  n.     Bishop  Bur-  mean  too." 

net  (History  of  His  Own  Times,  vol.  VL  p.  31,  2  Lords'  Jour.  II.  435. 

2d  Oxford  Ed.)  relates  an  instance  of  the  eva-  ^  Hatsell,  II.  125,  127- 
Bion  of  this  rule,  by  substituting  the  words 


Chap.  XIX.]  ktjle  as  to  the  same  bill.  899 

fatal  1  o  the  latter.  But  there  is  a  class  of  cases,  to  which  alone  the 
rule  seems  to  have  any  practical  application,  in  which  the  new  bill 
would  be  free  from  the  objections  of  the  first,  without  in  Ihe  slight- 
est respect  differing  from  it  in  terms,  namely,  where  the  former 
contains  provisions,  which,  as  coming  from  the  house,  in  which  it 
originated,  are  in  breach  of  the  privileges  of  the  other.  Thus,  for 
example,  if  the  lords  pass  a  bill  containing  clauses  imposing  a 
charge  of  some  sort  upon  the  people,  and  send  it  to  the  commons, 
the  bill  is  objectionable  in  the  latter  house,  and  cannot  be  there 
allowed  to  proceed,  consistently  with  the  privileges  of  that  house ; 
but  a  new  bill,  containing  precisely  the  same  provisions,  originating 
in  the  house  of  commons,  is  entirely  unobjectionable.  According 
to  the  present  practice,  a  bill  sent  from  one  house  to  the  other, 
which  is  contrary  to  the  privileges  of  the  latter,  is  not  there  rejected ; 
but  is  laid  aside,  and  another  bill  precisely  similar  in  its  terms 
ordered  to  be  brought  in,  which  latter  is  passed  and  sent  to  the 
other  house  as  an  original  bill.^ 


Section  V.    Of  the  Application  of  the  Rule  when  a  Bill  has 

BEEN  passed. 

2323.  When  a  bill  has  been  passed  in  one  branch,  the  rule  is 
equally  peremptory,  that  no  similar  bill  can  be  afterwards  intro- 
duced.- In  practice,  however,  when  it  has  been  ascertained  that  a 
bill,  which  has  been  passed  in  one  house  and  sent  to  the  other,  is 
there  unacceptable  in  some  particvilars,  a  new  bill  may  be  introduced 
and  passed  in  the  house  in  which  it  originated,  with  such  variations 
from  the  first  bill,  as  to  make  it  acceptable  to  the  other  house.  This 
practice  appears  to  be  most  frequently  resorted  to  in  regard  to  bills, 
in  which  the  objectionable  parts  cannot  be  amended,  without  in- 
fringing upon  the  privileges  of  the  house  from  which  the  bill  is  sent. 
The  following  is  an  instance  of  this  sort.  A  bill  being  passed  in 
the  house  of  commons  and  sent  to  the  house  of  lords,  is  there  pro- 
ceeded with,  and  committed,  in  the  regular  course  of  proceeding. 
The  committee  report  it  with  amendments  imposing  rates,  tolls,  or 
other  charges  upon  the  people,  which  the  house  of  lords  cannot 
agree  ip  without  infringing  upon  the  privilege  of  the  commons ;  and 
as  they  cannot  agree  to  the  bill  without  the  amendments,  the  bill  is 

1  Jliiy,  238.  containiiifr  the  provisions  of  a  bill  that  has 

»  Hats.  II  125,  127.    But  this  rule  does  not     passed.    Reg.  of  Deb.  IV   Part  1,  G31. 
•ecm  to  apply  to  the  case  of  an  amendment 


900  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIII. 

accordingly  dropped,  Ihat  is,  it  is  no  further  proceeded  with.  In 
this  state  of  things,  the  commons  appoint  a  committee  to  inspect 
the  lords'  journals,  and  to  report  therefrom  the  proceedings  of  that 
house  upon  the  bill  in  question.  On  the  report  of  the  committee, 
if  the  amendments  reported  m  the  lords  are  acceptable,  the  com- 
mons order  another  biU  to  be  brought  in  similar  to  the  first,  but 
with  its  provisions  so  far  altered  as  to  conform  to  the  amendments 
proposed  in  the  lords.  This  bill  is,  of  course,  acceptable  to  both 
houses.^ 

2324,  In  one  case,  in  which  the  house  of  commons  ordered  that 
leave  be  given  for  the  introduction  of  a  biU  bearing  the  same  title 
with  one  which  had  aheady  passed,  and  been  sent  to  the  lords,  an 
entry  was  mJde  in  the  journal  of  the  reasons,  which  induced  the 
house  to  give  leave  for  bringing  in  the  new  bill,  namely,  that  the 
house  were  informed  by  a  member  in  his  place,  that  the  former  bill 
had  been  rejected  in  the  house  of  lords,  on  account  of  its  containing 
multifarious  matters.^ 

2325.  When  a  bill  has  passed  in  both  branches,  it  is  a  rule  of 
parliament,  that  no  other  can  be  introduced  into  either,  during  the 
same  session,  which  has  for  its  object  to  repeal  or  amend  the  former. 
This  rule  was  considered  so  imperative,  that  in  1721,  a  prorogation 
of  parHament  took  place  for  two  days,  in  order  that  a  bill  relating 
to  the  South  Sea  Company  might  be  passed,  in  which  it  was  pro- 
posed to  insert  provisions  contradictory  to  clauses  contained  in  an 
act  of  the  same  session.^  In  order  to  avoid  the  embarrassment 
which  might  otherwise  result  from  the  application  of  this  rule,  it 
became  and  was  the  common  practice  until  the  year  1850,  to 
insert  in  all  bills,  particularly  in  those  of  a  temporary  policy,  and  in 
tax  bills,  a  clause  providing  that  they  might  be  amended  or  repealed 
by  any  act  to  be  passed  in  the  same  session.^  But  this  clause, 
since  the  year  above  mentioned,  has  become  unnecessary,  in  conse- 
quence of  the  13  and  14  Vict.  c.  1,  which  provides,  "  that  every 
act  may  be  altered,  amended,  or  repealed,  in  the  same  session  of 
parliament,  any  law  or  usage  to  the  contrary  notwithstanding." 

1  May,  237.  ual  a  former  act;  or  to  rectify  mistakes  in, 

-  Comm.  Jour.  XXXIII.  726.  continue  in  force,  or  to  enlarge  the  time  for 

s  Comm.  .lour.  XIX.  639.  the  execution  of,  a  former   act.     J[efferson's 

*May,  239;    Hats.    II.  129,  133,  n.     The  Manual,  Sec.  XLIV.    It  is  doubtful  whether 

rule  stated  in  the  text,  never,  it  seems,  applied  the  rule  ever  prevailed  in  this  country.     See 

to  prevent  the  passing  of  an  explanatory  act;  J.  of  C.  VII.  417;  J.  of  H.  I.  118,  119;  J.  of 

or  to  a  bill  to  enforce,  and  make  more  effect-  S.  I.  50,  91. 


Chap.  XIX.]  rule  as  to  the  same  bill.  901 


Section  VI.     Op  tub  Application  of  tub  Rule  to  the  different 
Stages  of  a  Bill  and  to  Amendments. 

2326.  It  is  a  general  rale  of  parliamentary  practice,  that,  when- 
ever the  course  of  proceeding  requires  the  house  to  come  to  s(!veral 
successive  resolutions,  each  one  is  to  be  considered  and  decided  by 
itself,  and  without  reference  to  any  step  previously  taken.  The 
advantage  of  this  method  is,  that  it  affords  the  house  an  opportu- 
nity to  revise  and  reconsider  its  prior  determinations.  In  the  pass- 
ing of  bills,  —  the  most  important  of  the  functions  of  a  legislative 
assembly,  —  these  different  steps  or  stages  are  more  numerous  than 
with  reference  to  any  other  proceeding,  and  every  stage  of  a  ]>ill 
submits  the  whole  and  every  part  of  it  to  the  opinion  of  the  house. 
It  is  the  operation  of  this  rule,  chiefly,  that  prevents  the  inconven- 
iences which  would  otherwise  inevitably  result  from  a  strict  appli- 
cation of  the  principle,  which  is  the  subject  of  the  present  chapter. 

2327.  The  rule  stated  in  the  preceding  paragraph  applies  as  well 
to  the  preliminary  proceedings,  as  to  the  several  stages  which  occur 
in  the  regular  progi-ess  of  a  bill.  Thus,  when  the  house  has  come 
to  a  resolution,  which  would  be  wholly  ineffectual,  unless  it  were 
made  the  foundation  of  a  bill,  the  motion  for  leave  to  bring  in 
a  bill  thereupon  may,  nevertheless,  be  rejected  ;  ^  and,  in  like  man- 
ner, if  leave  be  granted,  the  bill  may  be  refused,  when  presented ; 
or,  if  received,  the  house  may  negative  the  motion  that  it  be  read. 
So,  when  a  bill  has  commenced  its  regular  progress,  a  negative 
may  be  put  upon  any  one  of  the  successive  steps  or  stages  through 
which  it  ought  to  pass. 

2328.  The  rule  also  applies  to  the  amendments,  which  may  be 
made  at  the  ditferent  stages  of  a  bill ;  at  each  of  which,  "  every 
part  of  the  bill  is  open  for  amendment,  either  for  insertion  or  omis- 
sion, whether  the  same  amendment  has  been,  in  a  former  stage,  ac- 
cepted or  rejected."  ■^  The  stages  at  which  amendments  are  usually 
made,  are,  1,  in  the  committee  (this  stage  being  renewed  either  in 
whole  or  in  part,  as  often  as  a  bill  is  recommitted)  ;  2,  on,  that  is, 
after  considering  the  report ;  and,  3,  on  the  third  reading.  In  the 
committee,  those  amendments  only  can  be  made,  which  are  consist- 
ent with  the  title,  or  within  the  instructions  that  may  have  been  pre- 
viously given  by  the  house ;  but  within  these  limits,  amenchnents 
may  be  made  contradictory  of  previous  resolutions   or   votes;  on 

»  Comm.  Jour.  LXXXVIII.  317,  329.  «  HatseU,  II.  135. 

76 


902  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

tlie  report,  the  amendments  of  the  committee  may  be  negatived, 
amenclments  rejected  by  the  committee  may  be  adopted,  and  new 
amendments  may  be  made ;  and,  on  the  third  reading,  clauses  may 
be  added,  or  amendments  made,  which  have  before  been  rejected, 
and  clauses  may  be  left  out  of  the  bill,  which  have  been  inserted 
at  any  previous  stage. 

2329.  It  is  hardly  necessary  to  remark,  that  amendments  between 
the  houses  stand  upon  the  same  footing ;  not  only  for  the  reason 
already  suggested,  but  also  for  the  further  reason,  that  the  votes  or 
judgments  of  one  house  are  not  binding  upon  the  other. 


CHAPTER   TWENTIETH. 

OF  SOME  PARTICULAR  PROCEEDINGS,  WITH  REFERENCE  TO   BILLS, 
WHICH  ARE  OUT  OF  THE  ORDINARY  COURSE. 

Section  I.     Withdrawal. 

2330.  The  rules  of  parliamentary  practice,  which  preclude  the 
introduction  of  a  second  bill,  whilst  one  is  already  pending  with 
the  same  title,  or  after  one  of  the  same  title  or  tenor  has  been 
passed  or  rejected,  sometimes  make  it  expedient  that  a  bill  should 
be  mthdrawn,  in  the  course  of  its  progress,  in  order  to  the  intro- 
duction of  a  new  one.  The  effect  of  this  proceeding  is,  that  a  new 
bin  may  then  be  introduced,  in  the  same  manner  as  if  the  former 
had  never  been  before  the  house.  The  occasions  on  which  this 
proceeding  takes  place,  occur,  Jirst,  when  a  bill  is  so  defective  or 
objectionable  in  point  of  form,  or  the  proceedings  in  reference  to  it 
have  been  so  irregular,  that  it  cannot  be  allowed  to  proceed  further, 
consistently  with  the  orders  of  the  house ;  and,  second,  when,  for 
various  reasons,  it  becomes  expedient  or  desirable,  in  the  opinion 
of  the  parties,  if  it  be  a  private  bill,  or  of  the  friends  of  it  in  the 
house,  if  it  be  a  public  one,  that  it  should  be  withdrawn.^ 

1  It  seems,  according  to  the  practice  in  our  when  the  bill  is  first  offered  to  be  presented, 

Icislative  assemblies,  that  those  objections,  in  and  cannot  be  made  afterwards.     See  ante, 

point  of  foi-m,  which  in  parliament  are  fatal,  §  2115,  and  J.  of  H.  32d  Cong.  1st  Sess.  786; 

when  taken  notice  of,  and  lead  to  the  with-  Cong.  Globe,  XXIII.   312.     See  Same,  XXL 

drawal  of  the  bill,  are,  in  this  countiy,  consid-  807 ;  Same,  XXIII.  312. 
ered  as  waived,  uidess  taken  advantage  ol 


Chap.  XX.]  withdrawal  of  bill.  903 

2331.  When,  in  the  course  of  the  proceedings  upon  a  bill,  it  be- 
comes apparent,  that  its  further  progress  would  be  inconsistent  with 
the  orders  of  the  house,  the  bill  must  be  abandoned,  unless  it 
should  be  allowed  to  proceed  by  the  unanimous  consent  of  the 
house.  When  a  case  of  this  land  occurs,  and  the  objection  is 
pointed  out,  either  by  the  speaker,  or  some  member,  or  is  discovered 
by  the  parties,  it  is  usually  so  ol)vious,  that  the  effect  of  it  is  admit- 
ted at  once,  and  the  bill  immediately  abandoned,  or  measures  taken 
to  wUhdraw  it,  for  the  purpose  of  presenting  or  introducing  a  new 
one.  But,  if  the  objection  is  not  apparent,  or  the  friends  of  the  bill 
persist  in  carrying  it  forward,  the  question  may  be  settled  either  by 
a  direct  motion  that  the  biU  be  withdrawn,  or  by  a  motion  in  some 
one  of  the  common  forms,  to  postpone  it  to  a  day  beyond  the  ses- 
sion, or  by  objecting  the  irregularity  to  any  of  the  motions  for  pro- 
ceeding with  the  bill. 

2332.  The  principal  grounds  of  objection  to  proceeding  with  a 
bill,  as  against  order,  relate  :  1,  to  its  form  ;  as  where  a  bill  contains 
no  enacting  words  ;  where  it  contains  interlineations  or  erasures ;  ^ 
where  parts  of  a  bill  which  should  have  been  left  blank  are  filled 
up ;  -  where  commissioners'  names  are  not  inserted  as  required  by 
the  orders  of  the  house  ;  ^  where  a  bill  is  not  prepared  according  to 
the  standing  orders  relating  to  the  subject;^  2,  to  its  substance;  as 
where  the  title  of  a  bill  varies  from  the  order  for  preparing  and 
bringing  it  in; °  where  a  bUl  varies  from  the  order,  or  is  not  proper- 
ly prepared  , '''  where  a  bill  contains  provisions  not  authorized  by  the 
order,'  or  not  included  in  the  petition  ^  or  resolutions  ^  on  which  it 
is  founded  ;  3,  to  the  manner  of  its  introduction ;  as  where  a  bill  is 
presented  by  a  member  not  named  in  the  order  of  leave  ;  ^^  where  a 
private  bill  is  introduced  on  leave,  instead  of  being  brought  in  on 
petition ;  ^^  where  a  biU  contains  provisions  which  should  have  been 

1  Comm.  Jour.  XXX^^.  703;  Same,  XLIII.  327,  359:    Same,  LVIII.   309;    Same,   LXIX. 

467,  468;  Same,  XXIX.  926;  Same,  XXXIU.  266,  314;  Same,  LXX.  263. 

227,  674;  Same,  LVII.  47.  '  Comm.  Jour.  XLVL  657;  Same,  L.  374; 

3  Comm.  Jour.  XXXVI.  692;  Same,  XVIII.  Same,  LI.  609;  Same,  XLIL  528,  543;  Same, 

426;  Same,XIX.  115;  Same,  XX VL  130, 145;  XLIV.  514;    Same,   XXII.   414,   443;  Same, 

Same,    XXXIIL    674;    Same,    LXVIL    511;  XXXIL  843;  Same,  XXXIII.  492,  554,  595; 

Same,  XX.  779.  Same,  LVIL  409,  504,  521. 

»  Comm.  Jour.  LI.  495;  Same,  LV.  533,  555,  ^  Comm.  Jour.  LV.  417;  Same,  XLIL  705; 

627;  Same,  XLVIIl.  308,  346.  Same,  XXIX.  67;  Same,  XXXL  607;  Same, 

*■  Comm.  Jour.  X^XVIIL  925,  938;  Same,  XXXIL  843;  Same,  XXXIIL  210,  211;  Same, 

LXX.  209.  LXIX.  230. 

5  Comm.  Jour.  XLVIIL  341,  361;   Same,  »  Comm.  Jour.  XXII.  104. 

Lin.  696;  Same,  LVIII.  300;  Same,  LXXL  w  Comm.  Jour.  XXXIIL  255. 

252;  Saiue,  L.KX.  265.  "  Comm.  Jour.  LXX.  46;  Lords'  Jour.  XI* 

«  Comm.  .lour.  XLT.  825,  827 ;  Same,  XXIIL  570. 
66,  67,  90;  Same,  LVII.  467;  Same,  XXXIL 


904  LEGISLATIVE   ASSEMBLIES.  [PaRT   VIIL 

previously  considered  in  a  committee  of  the  whole ;  ^  and,  4,  tc 
the  proceedings  in  relation  to  it ;  as  where  printed  copies  of  a  bill 
have  not  been  delivered,  as  requh-ed  by  the  orders  of  the  house,  be- 
fore presenting  it ;  -  where  the  printed  copies  delivered  do  not  con- 
tain proper  blanks  ;  ^  where  a  bill,  to  which  the  consent  of  parties 
is  necessary,  varies  from  the  copy  to  which  the  parties  have  signi- 
fied their  consent.' 

2333.  There  is  another  class  of  cases,  in  which,  although  bills 
are  not  objectionable  as  against  order,  it  is  nevertheless  deemed  ex- 
pedient or  desk-able,  for  various  reasons,  either  of  a  public  or  pri- 
vate nature,  that  they  should  be  withdrawn  ;  as,  where  it  appears 
that  a  bill,  in  its  present  form,  ^^'iU  not  effectually  answer  the  pru-- 
poses  for  which  it  was  intended ; ''  where  it  is  apparent  from  the 
great  number  of  alterations  and  amendments,  reported  by  the  com- 
mittee on  the  bill,  ■'^hat  it  will  be  for  the  convenience  of  the  house, 
that  the  bill  should  be  withdrawn,  and  another  presented  in  its 
place ;  ^  where  the  house  is  informed  that  several  material  altera- 
tions are  necessary  to  be  made  in  the  bill,  which  cannot  be  made  or 
inserted  therein,  so  as  to  correspond  with  its  present  provisions,  in ' 
the  form  in  which  the  bill  is  drawn  ; "  where  an  estimate  on  which 
the  biU  is  founded  is  discovered  to  be  inaccurate  ;  ^  where  the  par- 
ties to  private  bills  desire,  for  particular  reasons,  to  withdraw  the 
same ;  ^  where  the  second  reading  of  a  bill  being  deferred  to  a  dis- 
tant day,  it  afterwards  appeared  that  to  put  it  off  for  so  long  a  time 
might  be  attended  with  great  pubhc  inconvenience,  and  an  earher 
day  could  not  be  appointed  consistently  with  the  orders  of  the 
house ;  ^'^  where,  in  consequence  of  the  alterations  and  amendments 
to  be  proposed  to  a  bill,  it  will  be  for  the  convenience  of  the  house 
to  have  it  withdrawn,  and  a  new  one  presented  in  its  place.^^ 

2334.  The  withdrawal  of  a  bill  may  take  place,  at  any  time,  in 
the  course  of  its  progi-ess,  whenever  the  informality  is  discovered, 
or  the  reason  becomes  manifest,  on  account  of  which  it  is  expe- 
dient or  necessary  to  withdraw  it.  When  a  bill  has  been  proceeded 
with,  in  regular  course,  to  any  stage,  but  has  not  been  made  the 

1  Lords'  Jour.  LV.  396.  •  Comm.  Jour.  XL.  905,  914. 

a  Comm.  Jour.  LXXI V.  236.  '  Comm.  Jour.  L.  229 ;  Same,  XLI.  281,  282, 

«  Lords' Jour.  XLH.  528,  543.  637;    Same,  XXXIV.  201,  268;    Same,  LX. 

4  Lords'  Jour.  XXXV.  488,  489.  165 ;  Same,  LXIV.  95. 

0  Comm.   Jour.   XLVIL  611,   714  ;    Same,         8  Comm.  Jour.  LIII.  525. 
XXXVL  479;  Same,  XLI.  739;  Same,  XXXII.         »  Comm.  Jour.  LIV.  551;  Same,  LIX  227 

815,  818;    Same,  XXXUI.  28;  Same,  LVIL  Same,  LXXIV.  235. 
888,  467;  Same,  LVIII.  620;  Same,  LXXIIL         lo  Comm.  Jour.  XXXIII.  46. 
350  397.  11  Comm.  Jour.  LVI.  267,  560. 


Chap.  XX.]  withdrawal  of  bill.  905 

subject  of  an  order  which  is  not  yet  executed,  as,  for  example, 
where  it  has  been  received,  but  has  not  been  ordered  to  be  read  the 
first  time  ; '  or  has  been  read  the  first  time,  without  being  ordered  to 
be  read  the  second  time  ;-  a  motion  lor  the  wiihdrawal  of  the  bill 
may  be  made  directly  and  at  any  time,  without  any  preliminary 
proceeding.  Where  a  bill  has  been  made  the  subject  of  an  order 
which  is  not  yet  executed,  as,  for  example,  where  a  bill  has  been 
read  a  first  time,  and  has  been  ordered  to  be  read  a  second  time, 
but  has  not  yet  been  read  in  pursuance  of  the  order,''  a  motion  to 
withdraw  it  may  be  made,  in  like  manner,  at  any  time,  but  it  must 
regularly  be  preceded  by  a  discharge  of  the  order.  If  a  time  has 
also  been  assigned  for  the  execution  of  the  order,  as  where  a  bill 
has  been  ordered  to  be  read  a  second  time,  on  a  day  named,  both 
orders,  —  for  the  second  reading,  and  for  the  time  assigned,  if  the 
subjects  of  separate  orders,  —  must  first  be  discharged.* 

2335.  When  a  bill,  having  been  proceeded  with,  has  been  made 
the  subject  of  an  order,  for  a  particular  day,  the  order  is  an  order 
of  the  day  for  that  day ;  and  when  read  as  such,  the  motion  for 
withdrawal  may  be  made ;  but,  in  this  case,  it  is  necessary,  in  the 
first  place,  that  the  unexecuted  orders,  whatever  they  may  be,  as, 
for  example,  for  the  second  reading/'  commitment,'^  or  third  read- 
ing,' on  that  day,  should  be  discharged ;  and,  secondly,  that  any 
pending  motion  for  proceeding  with  the  order,  as,  that  the  bill  be 
now  read  the  third  time,^  or  that  the  speaker  do  now  leave  the 
chair,  should  be  previously  withdrawn;^  if  not  withdrawn,  the 
withdrawal  of  the  biU  may  be  moved  as  an  amendment.!'^ 

2336.  When  a  bill  has  been  committed  to  a  select  committee,  it 
may  be  withdrawn  at  any  time  afterwards,  on  motion,  the  order  for 
commitment  being  previously  discharged ;  ^i  or,  upon  its  being  as- 
certained by  the  committee,  that  the  bill  ought  to  be  withdi-awn, 
the  chairman  may  be  directed  to  inform  the  house  of  the  circiun- 
stances,  and  to  move  that  the  bUl  be  withdrawn.^-  When  a  bill  is 
under  consideration  in  a  committee  of  the  whole,  and  it  becomes 


1  Comm.  Jour.   XLVIH.   341,  361;    Same,  &  Comm.  Jour.  XXXIL  843;   Same,  LIV. 

LXIV.  198.  551. 

3  Comm.  Jour.  XVIII.  426  ;    Same,   XIX.  «  Comm.  Jour.  LVI.  267,  521. 

115;    Same,   XX.    779;    Same,    XXI.   248;  '  Comm.  Jour.  L  VII.  388;  Same,  LXX.  856. 

Same,  XXII.  414,  443;  Same,  XLIV.  514.  «  Comm.  Jour.  LXX.  355. 

s  Comm.  Jour.   XXX VL  258,  703;    Same,  »  Comm.  Jour.  LVL  409. 

XLVIII.  308,  346;  Same,  LI.  495;  Same,  LV.  '»  Comm.  Jour.  XXXV.  488,  489. 

533,555,627.  "Comm.  Jour.  XXVI.  692;   Same,  XLll 

*  Comm.  Jour.  LVI.  504.  528,  543;  Same,  LIX.  227,  on. 

12  Comm.  Jour.  XLVII.  714. 

76* 


906  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

apparent  to  the  committee  that  the  bill  ought  not  to  proceed,  the 
committee  may  thereupon  report  progress,  and  the  proper  motions 
be  made  in  the  house  for  the  withdrawal  of  the  biU.^ 

2337.  The  withdrawal  of  a  bill  usually  occurs  upon  the  state- 
ment of  a  member,  calling  the  attention  of  the  house  to  the  cir- 
cumstances ;  sometimes  upon  the  report  of  the  committee  on  the 
bill ;  -  and  sometimes  also  upon  the  petition  of  the  parties  in- 
terested ;  ^  but  in  whatever  mode  it  takes  place,  the  reason  for  the 
proceeding  is  generally  entered  on  the  journals;  and  when  the 
ground  for  withdrawal  is  suggested  by  a  member,  the  entry  is,  "that 
notice  being  taken,"  or  "  the  house  being  informed  that,"  &c. 

2338.  Clauses  offered  to  be  added  to  a  bill  by  way  of  amend- 
ment, or  as  riders,  may  be  withdrawn,  in  the  same  manner  as  the 
bill  itself,  at  any  time  before  they  have  been  made  a  part  of  it  by 
the  vote  of  the  house.  K  offered  on  the  report,  and  made  a  part  of 
the  bill  before  the  third  reading,  they  may  be  left  out  in  that  stage, 
by  way  of  amendment;  but,  if  offered  and  annexed  to  the  bill, 
after  the  third  reading,  they  cannot  be  withdrawn,  nor,  as  that  is 
the  last  stage,  can  they  be  left  out  by  way  of  amendment. 

2339.  A  motion  for  the  withdrawal  of  a  bill  is  sometimes  ex- 
pressed in  the  form  of  a  request,  that  leave  be  granted  for  that  pur- 
pose, sometimes  in  the  form  merely  that  the  bill  be  withdrawn. 
The  former  seems  most  proper,  when  the  biU  is  private,  the  latter 
when  it  is  public,  in  its  character ;  but  the  effect  is  the  same  in 
both.  The  motion  to  withdraw  a  bill  (unlike  a  motion  for  leave  to 
withdraw  a  motion,  which  cannot  be  debated,  and  requu-es  the 
unanimous  consent  of  the  house)  is  made,  debated,  and  decided 
upon,  Hke  other  motions  made  in  the  progress  of  a  bill. 

2340.  When  leave  is  given,  or  an  order  made,  for  the  withdrawal, 
it  is  usually  followed  by  a  motion,  which  is  seldom  refused,  that 
leave  be  granted  for  the  introduction  of  a  new  or  proper  one. 
Where  leave  is  thus  granted  for  a  new  bill,  the  original  order  of 
leave  remains  in  force,  and  is  the  authority  upon  which  the  bill  is 
presented.  It  is  not  unusual,  however,  to  name  other  members,  or 
to  add  members  to  those  originally  named,  for  the  purpose  of  pre- 
senting the  biU.  Where  a  bill,  which  is  withdrawn,  was  not  intro- 
duced in  pursuance  of  an  order  of  leave,  but  in  some  other  mode, 
as,  for  example,  by  the  report  of  a  committee,  or  from  the  other 
house,  the  house  can,  of  course,  direct  the  introduction  of  a  new 
one  in  such  manner  as  they  may  think  proper, 

1  Comm.  Jour.  LXVII.  511.  »  Comm.  Jour.  LIX.  227  ;  Same,  LXXIV, 

*  Comm.  Jour.  XLYIL  714.  235. 


Chap.  XX.]  rejection  of  bill.  907 


Section  II.    Rejection. 

2341.  Opposition  to  a  bill  may  be  manifested  in  several  ways ; 
as  by  postponing  the  proceeding  upon  it  to  a  day  beyond  the  ses- 
sion, which  is  the  usual  mode ;  or  by  putting  a  negative  upon  any 
of  the  motions  which  may  be  made  to  forward  it  in  the  regular 
course  of  business,  which  is  a  mode  frequently  adopted ;  or  by  a 
direct  motion  to  reject  the  bill  altogether,  which,  as  it  implies  some 
degree  of  feeling  on  the  part  of  the  house,^  is  not  so  common,  at 
least,  in  modern  times.  Before  the  revolution,  and  for  some  time 
afterwards,  it  was  not  uncommon  to  reject  bills ;  but,  for  the  last 
half  century  and  more,  the  journals  of  the  commons  record  only 
two  instances  of  this  proceeding,  though  in  the  other  house  the 
practice  has  been  more  general.-^ 

2342.  A  direct  motion  to  reject  maybe  made  at  any  regular 
stage,  or  at  any  interval  in  the  progress  of  a  bill ;  as,  for  example, 
upon  being  refused  a  first  reading,'^  immediately  after  being  read 
a  fii-st  time,^  upon  being  refused  a  second  reading,^  upon  being 
refused  a  second  reading  at  the  time  ordered  therefor,'^  immediately 
after  second  reading  and  hearing  counsel,'  upon  being  refused  to 
be  committed,*^  upon  being  refused  to  be  committed  at  the  time 
ordered  therefor,^  upon  being  reported,^''  after  considering  the  re- 
port,^^  after  being  ordered  to  a  third  reading.^^ 

2343.  The  motion  is  usually  made,  as  appears  by  the  above  ex- 
amples, either  immediately  after  some  step  in  the  regular  progress 
has  been  taken,  or  after  a  negative  has  been  put  upon  some  one  of 
the  proper  motions  for  forwarding  the  biU,  at  the  time  assigned  for 
the  pm-pose  ;  but  it  may  also  be  made  during  the  interval  between 
any  two  stages,  as  for  example,  when  a  bill  has  been  read  a  second 

» In  the  reign  of  Elizabeth,  it  appears  from  his  word,  for  he  tossed  them  into  the  very 

one  entry  in  the  journal,  that  a  bill  was  re-  middle  of  the  house." 
jected  and  ordered  to  be  torn,  Comra.  Jour.  I.         *  Mi^y,  354. 

63;  and  in  the  year  1620,  a  bill,  on  the  motion         ^  (jomm.    Jour.   XXII.   138;   Lords'   Jcnr. 

of  Sir  Edward  Coke,  "  was  rejected  and  torn  XXXVIIL  507. 
without  one  negative,"  Comm.  Jour.  I.  560.         *  Lords'  Jour.  XX.  637. 
The  following  extract  from  the  Pari.  Deb.  VL         »  Lords'  Jour.  XXIV.  23. 
248,  shows  that  such  manifestations  of  feel-         ">  Lords' Jour.  XXXV.  333. 
ing  do  not   belong  exclusively  to   an   early         '  Lords'  Jour.  XLI.  485,  487. 
period:  "The  speaker  (Sir  Fletcher  Norton)         «  Lords'  Jour.  XXXVIIL  488. 
protested,  before  he  put  the  question  on  agree-         *  Lords'  Jour.  XXXIII.  519,  520. 
ing  with  the  lords  in  their  amendment  to  the         'o  Lords'  Jour.  XLIl.  270,  272,  329. 
corn  and  game  bills,  that  he  was  sincerely  for         '*  Lords'  Jour.  XXXVIIL  5S8. 
throwing  them   both   over  the  table  ;    and,         "  Lords'  Jour.  XXXVIU.  503. 
ffhen  they  were  rejected,  he  was  as  good  as 


908  LEGISLATIVE    ASSEMBLIES.  [PaRT    YIIL 

time  and  ordered  to  be  committed  on  a  day  subsequent,  it  may  be 
rejected  on  any  intermediate  day,  the  order  for  commitment  being 
first  read,  on  motion,  and  discharged ;  ^  and  so,  on  the  order  of 
the  day  being  read  for  proceeding  with  a  bill,  the  motion  to  reject 
may  be  made  at  once,  instead  of  a  motion  to  forward  the  bill,  as, 
for  example,  on  reading  the  order  of  the  day  for  the  third  reading 
of  a  bill,  a  motion  may  be  immediately  made  to  reject  it.^ 

2344.  The  rejection  of  a  bill,  though  implying  a  strong  expres- 
sion of  opinion,  does  not  differ  materially,  as  to  its  practical  effect, 
from  that  of  any  of  the  other  motions  by  which  the  opinion  of  the 
house  is  adversely  expressed.  Whilst  a  bill  is  pending,  —  and  it 
is  in  a  parliamentary  sense  pending  although  postponed  in  the 
usual  manner,  —  no  other  which  is  the  same  in  substance  can  be 
introduced  during  the  same  session.  The  same  result  follows  from 
the  rejection  of  a  bilL 

Section  IIL    Laying  aside. 

2345.  A  mode  of  proceeding,  somewhat  similar  m  its  operation, 
as  bet^^'cen  the  two  houses,  to  the  withdrawal  of  a  bill,  in  reference 
to  the  petitioners  for  it,  or  parties  interested  in  it,  occurs  when  a 
bill  is  laid  aside.  This  disposition  of  a  bill  takes  place,  when  one 
house  sends  a  bill  to  the  other,  which  that  house  cannot  proceed 
upon,  consistently  with  the  preservation  of  its  privileges,  but  which 
it  is  nevertheless  wiUihg  to  pass.  Thus,  if  the  house  of  lords  passes 
a  bill  and  sends  it  to  the  house  of  commons,  with  clauses  in  it 
which  ought  to  originate  in  the  latter,  the  bill  is  in  violation  of  the 
privileges  of  the  commons,  and  cannot  be  allowed  to  proceed  there 
as  a  bill  from  the  lords.  But,  if  it  contains  nothing  objectionable 
in  other  respects,  and  the  house  of  commons  would  be  wilhng  to 
pass  it,  if  it  had  originated  in  that  house,  the  course  of  proceeding 
is,  to  order  the  bill  to  be  laid  aside,  —  equivalent  to  a  withdrawal, 
—  and  to  order  another  precisely  similar  to  be  brought  in.  The 
latter  is  then  proceeded  with  and  passed,  without  objection,  —  hav- 
ing originated  in  the  commons,  —  and  is  sent  to  the  house  of  lords 
to  be  there  agreed  to,  as  if  the  other  bill  had  never  had  any  exist- 
ence. This  course  is  also  adopted,  when  a  bill  from  one  house  is 
passed  in  the  other  with  amendments,  which  the  former  cannot 
entertain  consistently  with  its  own  privileges,  as  coming  from  the 
latter,  but  to  which  it  has  no  other  objection.     In  such  a  case,  the 

1  Lords'  Jour.  XXXVIII.  146,  262.  «  Lords'  Jour.'xXXVm.  502. 


Chap.  XX.] 


DROPPING   OF   BILL. 


909 


house  to  which  the  bill  is  sent,  orders  it  to  be  laid  aside,  and 
another  embodying  the  amendments  to  be  prepared  and  brought  in, 
which  is  proceeded  with  and  passed,  as  an  original  bill  of  the  latter 
house.' 

2346.  A  bill  may  be  thus  laid  aside  immediately  upon  its  being 
introduced,  or  after  it  has  been  proceeded  upon,  and  at  any  stage, 
or  in  any  interval,  of  its  progress  ;  as,  for  example,  after  being  or- 
dered to  a  second  reading,-  or  at  the  time  appointed  therefor,-^  or 
upon  the  report  of  the  committee  upon  it ;  ■*  and,  in  two  instances, 
it  appears  from  the  journals,  that  the  motion  to  lay  aside  was 
allowed  to  supersede  a  motion  that  the  bill  be  now  read  a  second 
time,  but  the  propriety  of  this  course,  supposing  the  entry  in  the 
journals  accurate,  may  well  be  questioned.-^ 

2347.  A  proceeding  not  unlike  the  laying  aside  of  a  bill,  is  to 
resolve  to  proceed  no  further  with  it,  without  taking  any  measures 
for  the  introduction  of  a  new  one.  Thus,  where  a  bill  from  the 
commons  was  twice  read  in  the  lords,  and  committed,  and  the 
committee  reported,  "that  they  had  gone  through  the  bill  and 
made  some  amendments  thereunto  ;  but,  upon  consideration  of  the 
whole  matter,  find  several  things  contained  in  the  said  bill  unpar- 
liamentary and  unprecedented,  intrenching  on  the  rights  and  privi- 
leges, and  derogatory  to  the  honor  of  the  house,  and  therefore  did 
not  tliink  fit  to  proceed  any  further  in  the  bill,  without  having  the 
direction  of  the  house  ; "  it  was  thereupon  ordered,  "  that  this 
house  will  proceed  no  further  on  consideration  of  the  said  bill."  ^ 


Section  IV.    Dropping. 

2348.  When  any  of  the  regular  proceedings  upon  a  bill  has  been 
assigned  for  a  particular  day,  and  thus  made  an  order  of  the  day 
for  that  day,  as,  for  example,  when  a  bUl  has  been  read  the  first 
time,  and  ordered  to  be  read  a  second  time  on  a  given  day,  if  any 
thing  occurs  to  prevent  the  order  from  being  proceeded  with  on  that 
day,  it  becomes  what  is  called  a  dropped  order.  The  most  com- 
mon occasion  on  which  an  order  drops,  is  when  the  house  is  ad- 
journed by  the  speaker  for  want  of  forty  members.  The  same 
tiling  occurs  when,  for  any  other  cause,  the  orders  of  the  day  are 
not  proceeded  with,  before  the  adjournment  of  the  house  for  the 


1  May,  238. 

a  Comm.  Jour.  XXXIV.  745,  746. 
8  Comm.  Jour.  XXXIV.  745,  746. 
*  Lords'  Jour.  XXIII.  232. 


BComm.  Jour.  XXVI.  758;  Same,  XXIX. 
274. 
»  Comm.  Jour.  XXIII.  232. 


910  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

day.     Sometimes  an  order  is  dropped,  in  consequence  of  the  ad- 
journment of  the  house  over  the  day  assigned. 

2349.  In  all  these  cases,  the  course  of  proceeding  is  to  take  up 
the  business  precisely  at  the  point  where  it  was  left,  or  to  renew 
the  order  for  a  subsequent  day.  An  order  may  also  be  dropped,  in 
consequence  of  no  motion  being  made  for  the  reading  of  it,  or  if 
read,  of  no  motion  being  made  for  proceeding  with  it.  This  is  a 
mode  usually  resorted  to,  when  the  parties  to  a  private  bUl,  or  the 
members  interested  in  and  having  the  charge  of  a  pubhc  one,  de- 
sire to  abandon  it ;  they  can  effect  their  object  by  simply  refraining 
from  making  the  motions  which  are  necessary  to  carry  it  forward. 
Proceedinsrs  thus  abandoned  are  seldom  renewed  ;  instances,  how- 
ever,  have  occurred,  in  which  public  or  private  bills,  which  have 
been  dropped  by  their  original  promoters,  in  consequence  of  amend- 
ments being  introduced  by  thek  opponents,  have  been  taken  up  and 
carried  forward  by  other  members.^ 


CHAPTER    TWENTY-FIRST. 

OF    COMMUNICATIONS   BETWEEN   THE   TWO   HOUSES  RELATIVE  TO 
THE  REASONS  OR  GROUNDS  FOR  THE  PASSING  OF  BILLS. 

2350.  When  one  house  passes  a  bill  and  sends  it  to  the  other,  it 
offers  no  inducements  or  reasons  for  passing  the  biU,  in  order  to  ob- 
tain the  concurrence  of  the  latter,  other  than  the  statements  of  such 
grounds  or  reasons  which  appear  in  the  preamble.  The  facts  or 
reasons  there  stated,  when  they  are  of  a  pubHc  nature,  are  equally 
in  the  possession  of  the  house  to  which  the  bill  is  sent ;  and  the 
freedom  and  independence  of  each  branch  require  that  these  facts 
and  reasons  should  be  left  to  exert  their  proper  influence,  without 
further  interference. 

2351.  When  a  bill  has  passed  in  one  house,  and  been  sent  to 
the  other,  the  provisions  of  which  bill  have  been  grounded,  not 
upon  general  notoriety,  but  Upon  special  facts  that  are  necessary  to 
be  proved  by  evidence,  it  is  usual  for  the  house  to  which  the  bill  is 
sent,  at  any  stage  of  the  proceedings,  when  it  thinks  proper,  either 
by  a  message,  or  at  a  conference,  (usually  the  former,)  to  ask  infor- 

1  Iklay,  488. 


Chap.  XXL]  grounds  of  passing  bills.  911 

mation  of  the  grounds  and  evidence  upon  which  the  bill,  or  some 
particular  clause  of  iV  has  passed;  and  this  evidence,  whether 
arising  out  of  papers,  or  from  the  examination  of  witnesses,  is,  in 
general,  immediately  communicated.'- 

2352.  The  right  to  request,  and  the  obligation  to  furnish,  the 
grounds  and  evidence  upon  which  a  bill  is  passed,  are  restricted  to 
those  grounds  upon  which  the  passing  of  the  bill  is  placed  by  the 
house  in  which  it  originates,  that  is,  to  the  facts  recapitulated  or 
documents  mentioned  in  the  preamble,  and  on  which  the  l^ill  is 
avowedly  founded.'^  When,  however,  a  bill  is  judicial  in  lis  nature, 
as  affecliiig  the  legal  rights  or  private  property  of  individuals,  the 
evidence  on  which  it  is  founded  may  be  requested,  and  ought  to 
be  communicated,  even  when  the  bill  itself  contains  no  statement 
of  the  facts,  or  states  facts  the  evidence  of  which  does  not  appear 
in  the  preamble.^ 

2353.  In  order  to  obtain  the  desired  information,  a  message  is  to 
be  sent  to  the  house  by  which  the  bill  is  passed,  requesting  that 
house  to  communicate  to  the  other  the  evidence  on  which  the  for- 
mer parsed  a  bill  entitled,  etc.,  or  to  communicate  a  certain  docu- 
ment, or  papers,  particularly  specified  in  the  message.  On  receiv- 
ing this  message,  the  house  may  proceed  at  once  to  consider  it,  in 
which  case,  if  there  is  no  objection  to  granting  the  request,  the 
practice  is,  to  send  the  papers  or  documents  by  the  messengers ;  or, 
a  time  may  be  assigned  for  the  consideration  of  the  message,  in 
which  case,  the  messengers  are  dismissed  with  the  answer,  that  the 
house  will  send  an  answer  by  messengers  of  their  own. 

2354.  If  the  house,  of  which  the  request  is  made,  declines  acced- 
ing to  it,  on  the  ground  that  the  case  is  not  one  in  which  it  is  the 
right  of  the  other  house  to  request  information,  the  answer  is,  that 
they  have  taken  the  message  into  consideration,  but  conceive  that 
it  has  not  been  the  practice  of  parliament,  for  the  house  making 
the  request  to  desire  the  evidence  upon  which  the  other  has  passed 
bills  of  this  nature,  and  that  they  think  this  reason  sufficient  for 
not  giving  any  further  answer. 

2355.  If  this  answer  should  not  prove  satisfactory,  the  other 
house  renews  the  request,  declaring  at  the  same  time,  that  it  is  ac- 
cording to  the  practice  of  parliament,  to  which  the  former  replies, 
stating  more  fully  the  reasons  for  declining;  as,  for  example, 
\\  here  the  lords  requested  the  commons  to  communicate  the  evi« 

1  Coram.  Jour.  XXXV.  392.  »  Pari.  Reg.  (2),  XX.  247,  248. 

»  Hats.  in.  70,  71.  *  Hats.  UL  70,  not* 


912  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

dence,  on  which  they  passed  a  bill  for  settling  an  annuity  on  the 
duke  of  Athol,  to  which  the  commons  declined  to  accede,  and  the 
lords  renewed  the  request,  the  commons  replied,  that  as  the  nature 
of  the  bill  mentioned  in  the  message  was  for  the  express  purpose 
of  making  a  disposition  of  pubKc  money,  the  commons  conceive 
that  the  claim  asserted  in  the  message  is  not  warranted  by  the 
practice  of  parliament,  and  doth  intrench  upon  the  rights  and  privi- 
leges of  the  commons,  from  which  they  can  never  depart.^ 

2*356.  Or  the  reason  may  be  stated  at  once,  in  the  first  instance ; 
as,  for  example,  where  the  house  of  commons,  in  answer  to  a  re- 
quest from  the  house  of  lords,  for  the  information  upon  which  the 
former  had  passed  a  bill,  returned  an  answer,  that  they  conceive  it 
has  not  been  the  practice  of  parliament  for  either  house  to  desire 
of  the  other  the  information  on  which  they  have  proceeded  in  pass- 
ing any  bill,  except  where  such  information  has  related  to  facts 
stated  in  such  bill  as  the  ground  and  foundation  thereof;  and  that 
the  commons  think  this  reason  sufficient  for  not  giving,  at  this  time, 
any  further  answer  to  the  message.^ 

2357.  In  the  cases  above  alluded  to,  the  communications  were 
all  made  by  message.  It  would  seem,  however,  to  be  more  conso- 
nant with  the  usages  of  parliament,  that,  where  the  communica- 
tion is  for  any  purpose  beyond  the  merely  making  or  granting  the 
request,  especially  where  the  request  is  declined  for  reasons  stated, 
it  ought  to  be  made  by  means  of  and  at  a  conference. 

2358.  The  evidence,  thus  desired  by  the  one  house  of  the  other, 
usually  exists  in  a  form  in  which  it  can  be  at  once  communicated, 
as,  for  example,  where  the  testimony  of  witnesses  has  been  taken 
by  a  committee,  and  the  minutes  of  it  reported  and  printed ;  but, 
where  this  is  not  the  case,  the  course  is  to  refer  it  to  a  committee  to 
state  the  matters-of-fact.  Thus,  where  the  commons  passed  a  bill, 
which  was  sent  to  the  lords,  and  there  read  a  first  and  second  time, 
and  committed,  the  lords  informed  the  commons,  "that  the  matters- 
of-fact  suggested  in  the  said  bill  as  the  ground  and  foundation  upon 
which  it  seems  to  have  proceeded,  in  the  house  of  commons,  so  far 
as  relates  to  certain  persons  therein  named,  not  appearing  suffi- 
ciently before  the  lords,"  they  desired  the  assistance  of  the  com- 
mons, in  order  to  have  the  state  of  the  said  matters-of-fact  more 
fully  laid  before  them.  The  commons  thereupon  appointed  such 
members  as  were  of  the  committee  of  secrecy,  by  whom  the  gen- 
eral subject  had  been  investigated,  a  committee  to  state  those  mat- 

1  Comm.  Jour.  LX  462,  471,  497.  »  Coram.  Jour.  XLL  842,  847. 


CUAl'.  XXL]  GROUNDS   OF   PASSING    BILLS.  913 

ters-of-fact,  upon  which  ihe  provisions  were  grounded,  which 
related  to  the  persons  in  question.  The  committee  made  a  state- 
ment accordingly,  which  was  delivered  to  the  lords,  agreeably  to 
their  request,  at  a  conference.^ 

2359.  In  order  to  determine  upon  the  particular  documents  or 
pai)ers  to  request  the  communication  of,  the  two  houses  proceed 
ditFerently.  The  votes  of  the  commons  being  printed  from  day  to 
day,  the  lords  may  have  recourse  to  them,  and  send  for  such  papers 
as  they  read  of  therein;  but  the  votes  of  the  lords  not  being 
printed,  and  the  commons  consequently  having  no  such  means  of 
information,  their  only  regular  course  is  to  appoint  a  committee  to 
search  the  lords'  journals,-  which  are  open  to  inspection  as  public 
records,  and,  upon  the  report  of  the  committee,  to  send  for  such 
papers  and  documents  as  they  think  proper.^ 

2360.  It  is  not  regular  for  either  house  to  proceed  further  than  to 
request,  or  to  communicate,  the  grounds  and  evidence  upon  which 
a  biU  has  passed ;  to  ask  why  the  house,  where  the  bill  took  its 
rise,  passed  it  in  such  or  such  a  manner,  or  to  acquaint  the  house 
to  which  it  is  sent,  that  it  has  passed  unanimously,'*  are  objectiona- 
ble proceedings.  It  has  not,  however,  been  unusual,  for  either 
house  to  remind  the  other  of  a  bill,  which,  from  its  importance,  has 
appeared  to  deserve  greater  despatch,  than  the  house  to  ^yhich  it 
was  sent  seemed  inclined  to  give  it.' 

2361.  There  is  one  exception  to  this  rule,  of  those  biUs,  which, 
by  the  custom  of  parliament,  must  originate  in  the  one  or  the  other, 
and  not  indifferently  in  cither,  of  the  two  houses ;  as,  for  example, 
money  bills,  or  bills  for  the  expenditure  of  public  money,'^  which 
can  only  originate  in  the  house  of  commons.  In  the  case  of  such 
biUs,  or  clauses  of  a  similar  character  in  other  bills,  it  is  not  accord- 
ing to  the  custom  of  parliament,  for  the  house  which  passes  the 
bill,  although  sometimes  requested  by  the  other,  to  communicate 
the  grounds  and  evidence  on  which  they  are  passed." 

2362.  As  one  house,  when  it  passes  a  bill,  and  sends  it  to  the 
other,  gives  no  reasons,  nor  can  be  required  to  give  any.  except 
what  appear  on  the  face  of  the  bill;  so,  neither  does  the  house 
which  amends  a  bill  give  any  reason  for  its  amendment,  nor  can 
properly  be  required  to  give  any,  —  every  amendment  being  sup- 

1  Comm.  Jour.  XIX.  630,  631;  Hatsell,  IV.  »  HatseU,  III.  143,  14-1,  145. 

13,  and  note.  ■•  See  Comm.  Jour.  XVIIL  625,  626- 

^  The  minutes  of  tlio   proceedings  in  the  ^  Hatsell,  III.  71. 

lords  are  now  published  from  day  to  day,  but  •  Comm.  Jour.  LX.  462,  471,  497. 

it  does   not  appear  that  the  practice  above  '  Hatsell,  III.  143,  144,  146. 
stated  has  been  changed.    May,  198. 

77 


914  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIII. 

posed  to  carry  with  it  its  own  reason,  until  it  is  objected  against.^ 
But,  where  additional  clauses,  containing  new  provisions,  are  added 
to  a  bill  by  way  of  amendment,  by  the  house  to  which  the  bill  is 
sent,  such  additional  clauses,  it  seems,  stand  upon  the  same  footing 
in  this  respect,  as  a  bill ;  and  the  house  to  which  the  bill  is  returned, 
with  such  clauses,  may  request  to  be  informed  of  the  grounds  and 
reasons  upon  which  they  have  been  added. 

2363.  The  inconvenience  likely  to  result,  in  practice,  from  the 
rule  mentioned  in  this  chapter,  is  obviated,  in  part,  \n.  this  country, 
by  the  custom,  which  prevails  in  our  legislative  assembhes,  of  send- 
ing from  one  branch  to  the  other,  with  a  biU,  all  the  documentary 
evidence  which  belongs  with  it,  or  upon  which  it  is  founded.  This 
practice,  which  is  supposed  to  be  quite  general,  is  in  some  assem- 
bhes, sanctioned  by  a  special  rule.  A  joint  rule  of  congress  pro- 
vides that  "  each  house  shall  transmit  to  the  other  all  papers  on 
which  any  bill  or  resolution  shall  be  founded."  ^  In  those  cases 
where  testimony  is  taken,  but  not  preserved  in  writing,  the  incon- 
venience may  be  partly  obviated  in  those  assemblies  which  proceed 
by  joint  committees  constituting  homogeneous  bodies,  by  the  refer- 
ence of  the  subject-matter  to  such  a  committee.  Where  this  is  the 
case,  the  oral  evidence  can  be  stated  by  members  of  the  committee, 
in  both  branches.  In  other  cases  there  seems  to  be  no  alternative, 
but  to  procure  the  evidence  in  the  manner  above  stated,  or  to  cause 
it  to  be  taken  over  again  in  the  branch  to  which  a  bill  is  sent. 


CHAPTER    TWENTY-SECOND. 

OF  THE  ROYAL  ASSENT,  OR  APPROVAL  BY  THE  EXECUTIVE. 

2364.  When  bills  have  been  finally  agi-eed  to  by  both  houses,  the 
royal  assent  is  necessary,  in  order  to  give  them,  as  Lord  Hale 
expresses  it,  "  the  complement  and  perfection  of  a  law  ; "  ^  and,  for 
this  purpose,  all  bills,  except  money  biUs,  remain  in  the  custody  of 
the  clerk  of  the  enrolments  in  the  house  of  lords.  Money  bills  are 
informally  returned  to  the  commons,  after  having  been  agreed  to 
by  th«='  lords,  and  are  presented  by  the  speaker.     Bills,  which  have 

1  Hatsell,  IV.  4,  5,  and  note.  the  latter,  as  a  matter  of  course.    J.  of  S.  I 

*  Under  thin  rule,  the  report  on  a  bill,  ?ent      408,  499. 
firom  one  branch  to  the  other,  is  not  read  in         '  Juristliction  of  the  Lords,  C.  II. 


Chap.  XXIL]  royal  assent  to  bills.  915 

passed  both  houses,  cannot  legally  he  withheld  from  being  presented 
to  the  sovereign  for  the  royal  assent ;  ^  wliieh  may  be  signified  either 
by  the  sovereign  in  person,  or  in  virtue  of  a  commission  to  certain 
lords,  issued  under  the  great  seal  for  the  purpose. 

2365.  The  royal  assent  is  seldom  given  in  the  former  mode, 
except  at  the  close  of  a  session,  when  parliament  is  prorogued  by 
the  sovereign  in  person.  Certain  bills,  however,  which  make  pro- 
vision for  the  honor  and  dignity  of  the  crown,  are  generally 
assented  to  in  this  manner,  immediately  after  they  have  been 
agreed  to  by  both  houses;  such,  for  example,  as  bills  for  settling 
the  civil  lists.  When  the  sovereign  comes  in  person  to  give  the 
royal  assent,  the  clerk  assistant  of  the  parliaments  waits  upon  him 
before  he  enters  the  house,  reads  a  list  of  the  bills,  and  receives  his 
commands  upon  them.  When  the  assent  is  to  be  thus  given, 
(which  takes  place  in  the  house  of  lords,  both  houses  being  present) 
the  clerk  of  the  crown  reads  the  titles  of  the  bills,  and  the  clerk  of 
the  parliaments,  first  making  an  obeisance  to  the  throne,  signifies 
the  assent  of  the  sovereign  thereto,  in  a  form  of  words  which  will 
presently  be  stated.  The  assent  of  the  sovereign  to  each  particular 
bill,  as  its  title  is  read,  is  indicated  to  the  clerk  by  a  gentle  inclina- 
tion; though,  as  already  stated,  the  royal  commands  with  refer- 
ence to  each  have  previously  been  given  to  the  clerk  assistant. 

2366.  When  the  royal  assent  is  to  be  given  by  commission,  the 
lord  chancellor  is  notified  that  a  commission  is  wanted  for  the  piu*- 
pose.  The  clerk  of  the  enrolments  then  prepares  two  copies  of  the 
titles,  (each  written  upon  a  separate  piece  of  paper,)  of  all  the  bills 
in  his  custody  awaiting  the  royal  assent.  One  of  the  copies  is  for 
the  clerk  of  the  crown  to  insert  in  the  commission,  and  the  other 
for  the  royal  inspection  before  the  commission  is  signed.  The  com- 
mission is  directed  to  several  lords  by  name,  and  empowers  them, 
or  any  three  or  more  of  them,  to  give  the  royal  assent  to  certain 
bills  therein  mentioned. 

2367.  This  form  of  giving  the  royal  assent  is  sanctioned  by  a 
statute  of  Henry  VIIL,  which  declares  that  the  king's  royal  assent, 
by  letters  patent  under  the  great  seal  and  signed  with  his  hand, 
shall  be  taken  and  reputed  good  and  effectual  to  all  intents  and 
purposes.  The  commission  is  accordingly  signed  by  the  hand  of 
the  sovereign,  in  ordinary  cases  ;  but,  towards  the  close  of  the  reign 
of  George  IV.,  it  having  become  painful  for  him  to  write,  he  was 
authorized  by  statute  to  appoint  one  or  more  persons,  to  affix  his 

1  Hatsell,  n.  339;  Lords'  Jour.  XIIL  756. 


916  LEGISLATIVE   ASSEMBLIES.  [PaRT  VITL 

signature,  in  his  presence,  and  upon  a  verbal  command  from  him, 
by  means  of  a  stamp  prepared  for  the  purpose. 

2368.  In  signifying  the  royal  assent  by  commission,  the  proceed- 
ing is  as  follows.  Three  or  more  of  the  commissioners,  seated  on 
a  form  between  the  throne  and  the  woolsack  in  the  house  of  lords, 
command  the  usher  of  the  black  rod  to  signify  to  the  commons, 
that  their  attendance  is  desired  in  the  house  of  peers  to  hear  the 
commission  read.  The  commons,  thereupon,  with  their  speaker, 
immediately  come  to  the  bar.  The  commission  is  then  read  at 
length  ;  and  the  titles  of  the  bills  being  afterwards  read  by  the  clerk 
of  the  crown,  the  royal  assent  is  signified  to  each  by  the  clerk  of 
the  parliaments,  in  the  Norman  French  language. 

2369.  Money  biUs,  that  is,  those  which  grant  a  supply,  or  make 
an  appropriation  of  money,  for  the  purposes  of  government,  do  not, 
when  agreed  to  by  the  lords,  remain  in  their  custody,  to  receive  the 
royal  assent  in  the  ordinary  manner ;  but  are  returned  informally 
to  the  speaker  of  the  commons  to  be  presented  by  him  in  person. 
When,  therefore,  the  commons  are  summoned  and  go  up  to  attend 
ihe  sovereign  or  the  lords  commissioners,  in  the  house  of  lords,  the 
speaker  carries  the  supply  bills  with  him  to  the  bar,  and  there  de- 
livers them  into  the  hands  of  the  assistant  clerk  of  the  parliaments 
for  the  royal  assent.  When  the  sovereign  is  present  in  person,  the 
speaker  prefaces  the  delivery  of  the  money  bills  with  a  short  speech, 
concerning  the  principal  measures  of  the  session,  in  which  he  takes 
care  to  mention  the  supplies  granted  by  the  commons.  When  the 
sovereign  is  not  present  in  person,  these  bills  are  delivered  without 
any  speech.  The  money  bills  then  receive  the  royal  assent  before 
any  of  the  other  bills  awaiting  the  same  ceremony.^ 

2370.  The  assent,  whether  given  in  person  or  by  commissioners, 
is  expressed  in  a  different  form  of  words  to  the  different  sorts  of 
bills.  The  language,  in  which  the  assent  to  a  biU  of  supply  is  pro- 
nounced, acknowledges  the  free  gift  of  the  commons :  La  regne 
remercie  ses  bons  sujets,  accepte  leur  benevolence^  et  ainsi  le  veult. 
The  form  of  expression,  in  giving  the  assent  to  a  public  bill,  is, 
La  regne  le  veult;  to  a  private  bill,  Soit  fait  comme  il  est  desiree; 
to  a  petition  demanding  a  right,  whether  public  or  private,  Soit 
droit  fait  comme  il  est  desiree.  In  the  case  of  an  act  of  grace  or 
pardon,  which  has  the  royal  assent  before  it  is  agreed  to  by  the  two 
houses,  the  clerk  says,  Les  prelats^  seigneurs,  et  communes  en  ce 
present  parliament  assemblees,  au  nom  de  touts  vos  autres  sujets,  re- 

1  May,  208,  372,  426. 


Chap.  XXIL]  executive  approval  of  bills.  917 

mercient  tres  hnmblement  vostre  majestve,  et  prient  a  Dicu  vous 
doaner  en  sante  bonne  vie  et  longue. 

2371.  The  royal  assent  may  be  constitutionally  withheld  from 
any  bill,  in  which  case,  it  cannot  become  a  law.  The  form  of 
words  used  to  express  such  a  denial  is,  La  Reg-ne  s'avisera.  But 
the.  necessity  of  refusing  the  royal  assent  is  obviated  by  the  strict 
observance  in  modern  times  of  the  constitutional  principle,  that  the 
crown  has  no  will  but  that  of  its  ministers ;  who  only  continue  to 
serve  in  that  capacity,  so  long  as  they  retain  the  confidence  of 
parliament.  This  power  was  last  exercised  in  1707,  when  Queen 
Anne  refused  her  assent  to  a  biU  for  settling  the  militia  in  Scot- 
land. ^ 

2372.  During  the  commonwealth,  the  lord  protector  gave  his 
assent  to  bills  in  English ;  but,  on  the  restoration,  the  old  form  of 
words  was  reverted  to,  and  only  one  attempt  has  since  been  made 
to  abolish  it.  In  1706,  the  lords  passed  a  bill  "  for  abolishing  the 
use  of  the  French  tongue  in  all  proceedings  in  parliament  and 
courts  of  justice."  This  bill  dropped  in  the  house  of  commons ; 
and,  although  an  act  passed  in  1731,  for  conducting  all  proceedings 
in  courts  of  justice  in  English,  no  alteration  was  made  in  the  old 
forms  used  in  parliament.^ 

2373.  When  acts  are  thus  passed,  the  original  engrossment 
rolls  are  preserved  in  the  house  of  lords.  All  public  and  local  and 
personal  acts,  and  nearly  all  private  acts  are  printed  by  the  queen's 
printer,  and  printed  copies  are  referred  to  as  evidence  in  courts  of 

law. 

2374.  The  practice  in  this  country,  with  regard  to  bills  that 
have  been  agreed  to  by  the  two  branches  of  which  our  legislative 
bodies  are  composed,  depends  almost  entirely  upon  the  rules  estab- 
lished by  each  assembly  for  itself.  The  proceedings  of  congress,  in 
respect  to  such  bills,  which  take  place  exclusively  in  virtue  of  cer- 
tain joint  rules  first  adopted  in  1794,  and  which  have  been  imi- 
tated extensively  in  other  assemblies,  are  as  follows :  When  a  bill 
has  passed  in  both  branches,  having  been  previously  engrossed  on 
paper  merely,  and  not  on  parchment,  it  is  then  to  be  enrolled  on 
the  latter  material,  by  the  clerk  of  the  house  in  which  the  same 
originated,  with  a  certificate  thereon  signed  by  him,  of  that  fact, 
and  then  delivered  without  any  order  of  commitment,  to  a  com- 
mittee, called  the  committee  on  enrolled  bills,  for  examination  by 
them.     This  is  a  joint  standing  committee,  consisting  of  two  mem- 

1  May,  372.  «  May,  373. 

77* 


918  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

bers  from  each  branch,  appointed  at  the  commencement  of  each 
session,  whose  duty  it  is  to  compare  the  enrolment  with  the  en- 
grossed bills,  as  passed  in  the  frsvo  houses,  and,  after  correcting  any 
errors  they  may  discover  therein,  to  report  the  same  forthwith  to 
their  respective  houses.^  Enrolled  biUs,  after  this  examination  and 
report,  are  to  be  signed  in  the  respective  houses,  first  by  the  speaker, 
and  then  by  the  president  of  the  senate,  and  entered  on  the  journal 
of  each  house.  The  committee  is  then  to  present  the  enrolled 
bills  to  the  president  of  the  United  States,  for  his  approbation. 
They  are  then  to  report  the  day  of  the  presentation,  which  is  to  be 
entered  on  the  journal  of  each  house.  The  signing  of  an  enrolled 
bill  by  the  speaker  or  president  is  an  official  act,  which  can  onJy  be 
done  when  the  house  over  which  he  presides  is  in  session,  and  a 
quorum  is  present  therein  for  the  transaction  of  business.^ 

2375.  In  the  greater  number  of  the  legislative  bodies  in  this 
country,  the  approval  of  the  executive  is  as  necessary  to  constitute 
a  law,  as  it  is  in  parliament  to  have  the  royal  assent,  in  the  man- 
ner already  described.  In  the  constitution  of  the  United  States, 
and  in  those  of  every  State  in  the  Union,  except  in  the  following 
eight  States,  namely,  Rhode  Island,  Delaware,  Maryland,  Vii-ginia, 
North  Carolina,  South  Carolina,  Tennessee,  and  Ohio,  the  inter- 
vention of  the  executive  is  requked  to  the  perfection  of  every  act 
of  a  legislative  character.  In  the  States  above  named,  no  approval 
of  bills  by  the  executive  is  required,  but  every  act  of  legislation 
therein  is  complete  by  the  concurrence  of  the  two  branches  of 
which  their  legislative  bodies  are  composed.  The  veto  power,  as  it 
is  called,  which,  in  the. English  government  is,  in  theory,  absolute, 
and  which  seems,  in  modern  times,  such  is  the  manner  in  which 
parhament  is  at  present  constituted,  not  to  be  exercised  at  all,  is,  in 
this  country,  qualified  and  limited  only  ;  but  everywhere  with  us, 
where  it  exists,  it  is  frequently  and  freely  used,  as  one  of  the  ordi- 
nary functions  of  government,  chiefly  on  the  ground  of  constitu- 
tional objections. 

2376.  The  proceedings  on  bills,  in  the  legislative  bodies  of  this 
countiy,  after  they  have  passed  both  houses,  are  somewhat  different 

1  Mistakes  in  the  enrolment  are  to  be  cor-  examined  and  reported  upon  by  the  comrait- 

rected  by  the  committee  before  they  report  tee,  and,  if  it  has  already  been  signed,  is  sign- 

an  enrolled  bill;  but,  in  looking  over  bills  for  ed  over  again  by  the  presiding  ofBcers  of  the 

this  purpose,  they  sometimes  discern  iinpor-  two  houses.     See  J.  of  H.  30th  Cong.  1st  Sess. 

tant  mistakes  which  have  hitherto  esca])ed  979,980,  991;  J.  of  S.   30th  Cong.   1st  Sess. 

detection;    and  which,    upon   being  pointed  453. 

out,  are  at  once  corrected    by    general  con-  2  j.  of  H.  19th  Cong.  1st  Sess.  639. 
leut.    When  this  takes  place,  the  bill  is  again 


Chap.  XXIL]         executive  approval  of  bills.  919 

from  those  above  described,  at  least  under  those  constitutions  in 
which  the  veto  power  is  established.  In  our  assemblies,  the  execu- 
*^^ive  approval  is  not  given  at  stated  times,  or  at  the  end  of  the  ses- 
sion, at  a  meeting  of  the  two  branches;  but  bills,  and  such  other 
papers  as  require  the  approval  of  the  executive,  are  sent  to  him,  as 
they  are  passed,  and  his  approval  thereof  signified  and  authenti- 
cated by  his  signature  ;  nor  for  lliat  purpose  are  they  sent  1o,  or  do 
they  remain,  in  one  house,  in  preference  to  ihe  other,  after  they 
have  passed  both  h'luses,  but  remain  in  that  branch  in  which  ihey 
were  last  passed,  or  w  here  they  were  last  agreed  to,  to  be  transmit- 
ted at  once  to  the  executive  department.  In  those  States  ^\he^e 
there  is  no  veto  power  in  the  executive,  bills  which  have  passed 
both  branches,  are  authenticated  in  the  usual  manner,  probably  by 
the  signatures  of  the  presiding  officers,  and  deposited  in  ihe  recep- 
tacle or  custody  appointed  by  law  t  ^t  the  purpose.  In  the  follow- 
ing paragraphs,  the  subject  of  the  vetc  ;iower,  which,  in  all  the  con- 
stiiutions  in  which  it  is  inserted,  is  q».ite  similar,  or  nearly  the 
same,  and  the  practice  in  relation  to  it,  are  stated  and  explained. 

2377.  I.  The  first  requisition  for  the  exercise  of  this  power  is, 
that  every  bill,  including,  of  com-se,  every  instrument  intended  to 
have  the  force  of  law,  which  shall  have  passed  both  branches,  shall, 
before  it  becomes  a  law,  be  presented  to  the  executive  for  his  ap- 
proval. The  other  papers,  besides  bills,  which  are  required  to  be 
approved  by  the  executive,  are  particularly  specified  in  each  consti- 
tulion.  There  is  no  time  stated  within  which  bills  must  be  nre- 
sented  to  the  executive ;  this  may  take  place  at  any  time  aftei  a 
bill  has  passed,  and  before  the  end  of  the  session  ;  though  this  mat- 
ter  may  be  otherwise  regulated  by  rule,  or  by  constitutional  pro- 
vision ;  and  the  bill  is  not  passed  so  long  as  there  remain  any 
amendments  to  the  same,  of  the  other  branch,  not  yet  acted  upon 
or  agreed  to.*  There  is  no  provision  in  the  veto  clause,  as  to  the 
manner  in  which  bills  presented  to  the  executive  are  required  to  be 
authenticated,  but  they  are  requu-ed  for  this  purpose  to  be  authenti- 
cated only  in  the  ordinary  manner,  which,  either  by  usage,  rule,  or 
constitutional  provision,  is  effected  by  appropriate  woi-ds  and  the 
signatures  of  the  presiding  oflicers.  In  the  following  States,  in 
some  of  which  the  veto  power  exists,  and  in  others  not,  namely, 
North  Carolina,  South  Carolina,  Florida,  Georgia,  Alabama,  Mis- 
sissippi, Tennessee,  Ohio,  Indiana,  Illinois,  Missouri,  Arkansas, 
Texas,  and  Iowa,  it  is  provided  by  their  several  constitutions,  that 

»  J.  of  H.  26tlr  Cong.  1st  Sess.  1315. 


920  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

when  bills  have  passed  both  houses,  they  shall  be  signed  by  the 
respective  presiding  officers  thereof. 

2378.  II.  The  second  requisition  of  the  veto  clause  is,  that  if 
the  executive  approves  the  bill  thus  presented  to  him,  he  shall  sign 
it.  Mere  approval  alone,  without  signing,  although  the  latter  is 
omitted  In'  accident,  will  not  be  sufficient.^  On  the  other  hand,  if 
a  bill  which  has  been  duly  authenticated,  as  having  passed  both 
branches,  receives  the  executive  approval,  and  is  signed  by  hiin,  it 
will  become  a  law,  notwithstanding  the  agreement  of  the  two 
branches  is  certified  thereon  by  mistake.^  There  is  no  provision  as 
to  the  time  that  a  bill  shall  be  approved  and  signed ;  but  from  the 
fact  that  it  can  only  be  disapproved  of  and  returned,  while  the  legis- 
lative body  is  in  session,  it  may  fairly  be  inferred  that  a  bill  can  be 
approved  and  signed  only  within  that  time.  When  a  bill  has  been 
approved  and  signed,  the  legislative  body  is  usually  notified  of  it 
by  message,  and  the  bill,  now  become  an  act,  is  deposited  in  the 
place  for  the  purpose  appointed  by  law  for  the  keeping  of  the 
records  and  archives.  The  approval  of  a  bill  should  be  by  the  use 
of  some  appropriate  word  or  words,  accompanied  by  the  signature 
of  the  executive  magistrate,  but  not  by  a  statement  of  his  expo- 
sition of  the  meaning  of  it,  or  of  his  reasons  for  signing  the  biU. 
The  latter  com-se,  though  it  does  not  detract  from  the  validity  of 
the  bill,  is  clearly  irregular  and  unconstitutional.^ 

2379.  III.  The  veto  clause  then  provides,  that  if  the  executive 
8haU  not  approve  the  bUl,  he  shall  retm-n  it  with  his  objections,  to 
the  house  in  which  it  shall  have  originated,  within  a  certain  num- 
ber of  days  fixed  in  each  constitution  ;  and  that  if  not  so  returned, 
the  bill  shall  become  a  law,  in  the  same  manner  as  if  signed  by  the 
executive.  If  a  bill  is  not  approved  or  returned  wdthin  the  time,  the 
legislature  ought  to  be  notified  by  the  executive  that  the  biU  has 
become  a  law  without  his  agency,  and  the  biU  itself  deposited 
accordingly.  The  house,  in  which  a  bUl  originates,  is  commonly 
made  known  by  a  certificate  on  it,  or  by  the  message  with  which 
the  same  is  transmitted ;  or  the  executive  may  send  a  message  to 
both  houses  to  be  informed  in  which  the  bill  originated.  In  all  the 
constitutions,  except  that  of  Massachusetts,  Sundays  are  expressly 
excluded  from  the  computation  of  the  interval  within  which  a  bill 
is  to  be  returned,  and  the  day  on  which  it  is  presented  is  also  to  be 


1  J.  of  H.  l«th  Cong.  2d  Sess.  276,  279.  ^  j.  of  S.  21st  Cong.  1st  Sess.  382.    See  J.  of 

«  J.  of  H.  23d  Cong.  2d  Sess.  433,  434;  J.  of     H.  27th  Cong.  2d  Sess.  1025;   Cong.  Globe, 
g.  23d  Cong.  2d  Sess.  162.  XI.  712. 


Chap.  XXIL]  executive  approval  of  bills.  92J 

excluded  from  the  computation.  This  interval,  in  the  constitutions 
of  the  United  States,  New  York,  Pennsylvania,  Louisiana,  Kentucky; 
Illinois,  Michigan,  and  California,  is  fixed  at  ten  days ;  in  that  of 
Mississipi)i  at  six;  in  those  of  Maine,  New  Hampshire,  Vermont, 
Massachusetts,  New  Jersey,  Florida,  Alabama,  Georgia,  and  Texas, 
at  five  days ;  in  that  of  Missouri  at  four ;  and  in  those  of  Con- 
necticut, Indiana,  Arkansas,  Iowa,  and  Wisconsin  at  three  days. 

2380.  In  all  the  constitutions  above  mentioned,  it  is  provided, 
further,  that  if  the  legislature  adjourns  within  the  interval  therein 
respectively  fixed  (or  in  Vermont  M'ithin  three  days)  and  thus  pre- 
vents the  return  of  a  bill  within  that  time,  it  shall  not  become  a  law. 
But  in  those  of  Maine,  Pennsylvania,  Louisiana,  Kentucky,  an.d 
Illinois,  the  bill  is  to  become  a  law  notwithstanding  such  adjourn- 
ment, unless  it  is  returned  in  the  first  four  named  States,  within 
three  days  after  the  next  meeting  of  the  legislatures  thereof  respec- 
tively, and  in  Illinois,  on  the  first  day  of  the  meeting  of  the  general 
assembly  next  after  the  expiration  of  ten  days ;  in  Indiana,  the  bill 
is  to  become  a  law  notwithstanding  such  adjournment,  unless  the 
governor  within  five  days  next  after  shall  file  the  bill  with  his  objec- 
tions thereto  in  the  office  of  the  secretary  of  state,  who  shall  lay 
the  same  before  the  general  assembly  at  its  next  session  in  like 
manner  as  if  the  bill  had  been  returned  by  the  governor ;  in  Michi- 
gan it  is  provided  that  the  governor  may  approve,  sign,  and  file  in 
the  office  of  the  secretary  of  state  within  five  days  after  the 
adjournment  of  the  legislature,  any  act  passed  during  the  last  five 
days  of  the  session ;  and  in  Texas  it  is  provided  that  every  bill 
presented  to  the  governor  one  day  previous  to  the  adjournment  of 
the  legislature,  and  not  returned  to  the  house  in  which  it  originated, 
shall  become  a  law,  and  have  the  same  force  and  effect  as  if  signed. 
When  a  biU  fails  of  becoming  a  law  by  reason  of  the  lapse  of  time 
provided  above,  without  its  being  returned  to  the  house  in  which  it 
originated,  a  message  is  usually  sent  with  the  bill  to  that  house,  at 
the  commencement  of  the  next  session.^  Sometimes  the  executive 
in  his  answer  to  the  message  informing  him  of  the  close  of  the  ses- 
sion takes  notice  of  bills  detained  for  further  consideration.- 

2381.  IV.  The  executive  having  returned  a  biU  to  the  house  in 
which  it  originated,  it  is  competent,  nevertheless,  according  to  our 
constitutions,  for  the  legislature  to  give  the  bill  the  force  and  efli^ct 
of  law,  notwithstanding  the  executive  objections  to  it,  by  passing 

1  J.  of  S  21st  Cong.  2d  Sess.  13,  31 ;  J.  of  H.         2  J.  of  S.  21st  Cong.  1st  Sess.  382,  3£3,  384. 
27th  Cong.  3 J  Sess.  57;  Cong.  Globe.  XVIH. 
80. 


922  LEaiSLATIVE   ASSEMBLIES.  [PaKT    VIH 

it  in  the  manner  and  by  the  majority,  requh-ed  in  the  constitution. 
For  this  purpose,  it  is  provided,  in  all  the  American  constitutions 
which  contain  the  veto  power  in  substantially  the  same  terms,  that 
the  house  to  which  the  biU  is  returned  shall  enter  the  objections  on 
its  journal,  and  proceed  to  reconsider  the  biU;  that  if  upon  such 
reconsideration,  the  yeas  and  nays  being  taken  thereon,  that  house 
shall  agree  to  pass  the  biU,  by  the  requisite  majority,  the  bill  shall 
then  be  sent  with  the  objections  to  the  other  house,  where  it  shall 
likewdse  be  in  the  same  manner  reconsidered,  and  that  if  it  there 
passes  by  the  requisite  majority  of  that  house  it  shall  then  become 
a  law,  notwithstanding  the  objections  of  the  executive.  A  word  or 
two  on  each  of  the  steps  suggested  by  this  general  analysis  will 
complete  what  remains  to  be  said  on  the  subject  of  the  executive 
veto  in  this  country. 

2382.  (1.)  The  objections  of  the  executive,  to  the  approval  of  a 
bill,  are  usually  sent  with  the  bill  to  the  house  in  which  it  origi- 
nated, by  means  of  a  message  transmitted  in  the  usual  manner. 
The  reading  of  this  message  may  be  deferred,  but  when  once  com- 
menced, it  cannot  consistently  with  order,  be  dispensed  with,  even 
though  it  is  then  printed  and  accessible  to  the  members  in  that 
form.i  The  message,  as  it  contains  the  objections  of  the  executive 
to  the  bin,  makes,  properly  speaking,  a  part  of  the  communication, 
and  ordinarily  belongs  regularly  with  the  bill,^  but  it  may  be  sepa- 
rately considered,  if  thought  proper,  and  may  be  printed,-^  or  refer- 
red,* without  the  bill ;  ^  and  in  the  house  of  representatives  of  con- 
gress, it  has  been  decided,  that  if  a  motion  is  made  to  refer  the 
message  separately,  and  the  previous  question  is  thereupon  moved, 
the  main  question  is  on  the  motion  to  refer.*^ 

2383.  (2.)  The  first  requisition  of  the  constitutions  which  contain 
the  veto  power,  on  the  pai-t  of  the  house,  to  which  a  biU  is  returned 
with  objections,  is,  that  it  shall,  on  the  reception  of  the  bill  and 
objections,  enter  the  latter  at  large  on  its  journal,  and  proceed  to 
reconsider  the  bill.  According  to  the  literal  import  of  the  language, 
the  objections  would  be  required  to  be,  in  fact,  spread  upon  the 
journal  before  any  steps  could  be  taken  to  reconsider  the  bill,  and 
this  is  sometimes  done ;  ~'  but  it  is  not  necessary,  as  by  the  rule  of 
construction  and  the  practice  of  legislative  bodies,  the  objections 

1  Cong.  Globe,  XX.  13.  6  Cong.  Globe,  XI.  874. 

2  Cong.  Globe,  XIV.  3S1.  «  Cong.  Globe,  XI.  875. 
8  J.  of  S.  V.  620,  622,  630,  631.  '  J.  of  H.  VII.  566. 

*  J.  of  H.  27th  Cong.  2d  Sess.  1252,  1254; 
Cong.  Globe,  XI.  874. 


Chap.  XXIL]  executive  approval  of  bills. 


923 


are  considered  as  spread  upon  the  journal,  though  they  are  not  so 
in  fact  when  they  are  first  received ;  Mt  is  sufficient  if  they  are 
entered  upon  the  journal  as  a  part  of  the  proceedings  on  the  bill 
before  they  are  sent  to  the  other  house. 

2384.  (3.)  The  house  to  which  a  bill  is  returned  with  objections, 
may,  thereupon,  proceed  to  reconsider  the  same  at  once,  or  it  may 
assign  the  Qonsideration  thereof  for  some  future  time,  to  which  the 
bill  and  objections  are  postponed ; "-  or  they  may  be  referred  to  a 
select  commitlee,3  or  a  committee  of  the  whole  ;^  or  a  vetoed  bill 
maybe  ordered  to  lie  on  the  table  j'^  or  the  house  may  adjourn 
during  its  consideration ;  '^  and  in  the  house  of  representatives  of 
congress,  it  has  been  decided  that  if  a  motion  is  made  to  refer  or  to 
postpone  the  bill,  and  a  motion  is  thereupon  made  for  the  previous 
question,  the  main  question  is  on  passing  the  bill  notwithstanding 
the  president's  objections."  In  reconsidering  a  vetoed  bill  either 
house,  before  taking  the  final  question  thereon,  may  institute  such 
preliminary  proceedings  with  regard  to  the  same  as  it  may  think 
proper. 

2385.  (4.)  The  question,  on  passing  a  vetoed  bill,  whether  fi-om 
the  other  branch,^  or  from  the  executive,^  is  a  privileged  question, 
even  against  a  special  order  for  the  consideration  of  a  report  and 
resolutions  concerning  the  objections  of  the  executive  to  the  bill  in 
question ;  ^^  that  is  to  say,  a  motion  to  proceed  to  the  consideration 
of  the  vetoed  bill  wdll  take  precedence  of  motions  to  proceed  with 
other  bills,  on  the  ground  that  the  provisions  of  the  constitution  are 
entitled  to  precedence  over  the  rules  of  the  house.  If  this  motion 
is  decided  in  the  negative  the  ordinary  com-se  of  business  will 
revive. 

2386.  (5.)  When  a  vetoed  bill,  after  all  the  other  intermediate  pro- 
ceedings thereon  have  taken  place,  comes  up  for  consideration  in 
the  house  in  which  it  is  pending,  it  is  the  duty  of  the  presidmg 
officer  of  that  house,  without  any  motion  made  for  either  purpose, 
to  state  the  question  on  passing  the  bill,  and  that  the  same  is  to  be 
taken  by  yeas  and  nays  in  the  manner  required  by  the  constitution 
under  which  the   proceedings  take  place.     This   question  is   the 

1  Cong.  Globe,  XV.  483.  of  H.  27th  Cong.  2d  Sess.  1252,  1254;  Cong. 

«  J.  of  S.  v.  620,  622,  630,  631.  Globe,  XI.  873. 

3  J.  of  H.  27tli  Cong.  21   Sess.  1252,  1254;  «  Cong.  Globe,  XI.  873. 

Cong.  Globe,  XI.  873.  '  Cong.  Globe,  XIIL  665;  Same,  XV.  1166. 

<  Cong.  Globe,  XT.  873.  «  Cong.  Globe,  XIV.  396. 

»  J.  of  S.  24tli  Cong.  .6t  Sess.  421,  467 ;  J.  »  Cong.  Globe,  XI.  905. 

10  Cong.  Globe,  XI.  903. 


924  LEGISLATIVE    ASSEMBLIES.  [PaRT  VIll. 

same  in  all  cases,  namely,  shall  the  bill  pass  notwithstanding  the 
objections  of  the  executive,  and  must  in  aU  cases  be  taken  by  yeas 
and  nays,  which  must  be  recorded  on  the  journal.  It  may  be  dis- 
posed of,  either  temporarily  or  permanently,  by  any  of  the  subsid- 
iary motions,  except  that  of  amendment,  which,  as  a  veto  biU 
must  be  passed  or  rejected  as  it  stands,  is  not  admissible.^  On  any 
of  the  motions  for  disposing  of  the  bill,  whether  made  at  the  present 
time  or  any  other,  the  question  thereon  is  to  be  taken  and  decided 
in  the  ordinary  manner,  and  by  the  ordinary  majority.  The  final 
question  on  the  bill,  as  stated  above,  must,  on  the  contrary,  be 
taken  in  the  manner  prescribed,  and  decided  by  the  majority 
required,  usually  greater  than  is  requii-ed  on  other  questions  in  each 
particular  constitution. 

2387.  (6.)  This  majority  is  variously  expressed  in  the  different  con- 
stitutions ;  and,  with  one  exception,  which  will  be  presently  stated, 
it  is  the  same  in  both  branches.  These  constitutional  provisions 
may,  however,  be  all  reduced  to  four  classes ;  first,  in  the  constitu- 
tion of  the  United  States,  and  in  those  of  the  States  of  Maine, 
New  Hampshire,  Massachusetts,  Pennsylvania,  Mississippi,  New 
York,  Georgia,  Texas,  Wisconsin,  Iowa,  and  California,  the  house 
being  duly  constituted  for  the  transaction  of  business,  the  majority 
requned  is  that  of  two  thirds  of  the  members  present ;  second,  in 
those  of  Louisiana,  and  Michigan,  two  thirds  of  aU  the  members 
elected ;  third,  in  those  of  Vermont  and  Connecticut,  the  ordinary 
majority ;  and,  fourth,  in  the  constitutions  of  New  Jersey,  Florida, 
Alabama,  Kentucky,  Indiana,  Illinois,  and  Arkansas,  the  majority 
required  is  a  majority  of  all  the  members  elected.  In  the  constitu- 
tion of  Missom-i,  it  is  remarkable,  that  in  the  house  to  which  a  bill 
is  returned  with  objections,  the  ordinary  majority  only  is  required 
to  pass  it,  but  in  the  other,  it  must  be  passed  by  a  majority  of  all 
the  members  elected  to  that  house.^ 

2388.  (7.)  K  the  bill  passes  in  the  house  to  which  it  is  returned 
by  the  requisite  majority,  it  is  then  to  be  sent  to  the  other,  to  be 
there  reconsidered,  with  the  objections  of  the  executive,  by  a  mes- 
sage from  the  former.  If,  on  such  reconsideration,  the  house  agrees 
to  pass  the  bill  by  the  requisite  majority,  it  then  becomes  a  law.^ 
The  vote  on  the  biU,  whether  in  the  affirmative  or  negative,  does 

1  Cong.  Globe,  XV.  1184.           •  '  See  the  proceedings  of  the  two  bouses  of 

2  The  intention  was  probably  the  same,  in  congress,  on  the  thi  d  of  March,  1845,  in  pass- 
regard  to  botl  branches  but  the  language  is  ing  a  vetoed  bill,  "  relating  to  revenue  cutter 
different.  steamers."    J.  of  S.  28th  Cong.  2d  Sess.  262. 


ClIAP.  XXII.]  EXECUTIVE   APPROVAL   OF   BILLS.  92S 

not  admit  of  being  reconsidered.^     But  a  new  bill  may  be  offered, 
if  not  otherwise  objectionable.^ 

2389.  (8.)  There  seems  to  be  no  good  reason  why  a  bill  which 
has  been  passed  in  this  manner  should  not  be  authenticated  by  a 
certificate  thereon  of  the  proceedings  with  relation  to  the  same  in 
each  branch,  signed  by  the  proper  authenticating  officers  thereof, 
respectively,  and  deposited  at  once  without  the  intervention  of  the 
executive,  in  the  place  or  custody  appropriated  for  the  keeping  of 
the  laws.  But,  in  one  case,  it  was  thought  necessary  by  congress 
to  pass  a  joint  resolution,  "  that  the  secretary  of  the  senate  be 
dii-ectcd  to  present  to  the  secretary  of  state,  the  bill  in  question, 
with  certified  extracts  from  the  journals  of  the  senate  and  house, 
showing  the  proceedings  in  the  two  houses  of  congress  respectively 
on  the  same  bill,  after  the  same  had  been  returned  to  the  senate  by 
the  president  with  his  objections  thereto."  ^ 

2390.  (9.)  When  bills  have  been  agreed  to,  and  become  laws,  in 
any  of  the  ways  above  mentioned,  that  is  to  say,  either  by  the  con- 
currence of  the  two  branches  alone,  or  by  such  concurrence,  accom* 
panled  by  the  approval  of  the  executive,  or  by  such  concurrence, 
notwithstanding  the  objections  of  the  executive,  they  are  deposited 
and  kept  by  the  proper  officer,  appointed  by  law,  or  designated  by 
usage,  for  the  purpose,  by  whom  or  whose  authority,  the  laws  are 
authenticated  and  published,  from  time  to  time,  for  the  information 
of  the  people,  and  as  evidence  in  courts  of  justice.  This  is  so  gen- 
erally the  case,  that  the  necessity  of  proving  by  an  authenticated 
copy  seldom  occurs.* 

'  J.  of  H.  27th  Cono;.  1st  Sess.  1093,  1095,  *  For  full  and  accurate  infonnation  on  this 

1097,  1098;  Cong.  Globe,  XIIL  672.  subject,  which  does  not  properly  belong  to 

*  J.  of  S.  V.  636.  the  plan  of  this  work,  see  the  works  on  evi- 

•  J.  of  S.  28th  Cong.  2d  Sess.  262.  dence  generally,  and  May,  580,  and  foUo^ving. 

78 


/ 


926  LEGISLATIVE    ASSEMBLIES.  [PaRT  VIII. 


CHAPTER    TWENTY-THIRD. 

OF  SEVEEAL   MISCELLAJSnEOUS   MATTERS   CONNECTED  WITH  TIIE 

PASSING  OF  BILLS. 

2391.  This  chapter  is  devoted  to  the  consideration  of  several 
topics,  which  either  do  not  make  a  necessary  part  of  the  proceed- 
ings on  bills,  at  any  of  Ihe  regular  stages  in  their  progress,  or  which 
are  quite  independent  of  the  progress  of  a  bill,  but  are  too  impor- 
tant, in  their  conneciion  with  biUs,  to  be  wholly  overlooked.  These 
proceedings  relate  chiefly  to  the  correction  of  mistakes  between  the 
two  houses,  with  regard  to  the  passing  of  bills ;  to  the  reconsidera- 
tion of  votes  respecting  the  same ;  to  the  correction  of  mistakes  in 
declaring  and  recording  the  votes  thereon ;  and  how  far  the  validity 
of  the  proceeding  is  affected  by  the  want  of  the  usual  forms. 

2392.  If  any  mistake  occurs  in  the  delivery  of  a  message  accom- 
panying a  bill,  which  is  not  discovered  until  the  messengers  have 
returned,  the  mistake  may  be  corrected  by  means  of  a  new  mes- 
sage, either  from  the  house  by  which  the  first  was  sent,  or  from  the 
other,  suggesting  the  occurrence  of  the  mistake. 

2393.  It  sometimes  happens,  where  a  bill,  which  is  passed  in  one 
house,  and  sent  to  the  other,  is  there  passed  with  amendments, 
that  the  latter  are  incorrectly  engrossed  or  certified,  when  the  bill  is 
returned  to  the  house  in  which  it  originated.  Where  this  is  the 
case,  the  amending  house  informs  the  other  of  the  fact,  by  message, 
and  either  requests  a  return  ^  of  the  bill  and  amendments,  in  order 
that  the  mistake  may  be  corrected ;  ^  or  that  the  clerk  of  the  amend- 
ing house  may  be  permitted  to  attend  ^  in  the  other  for  that  pur- 
pose. Where  a  mistake  occurs  in  the  engrossment  of  a  bill  which 
is  sent  by  one  house  to  the  other,  a  similar  proceeding  takes  place.^ 
Where  a  bill  is  sent  from  one  house  to  the  other,  without  the  sig- 
nature of  the  clerk  of  the  amending  house,  the  defect  is  suggested 
by  a  message  from  the  house  to  which  the  bill  is  sent,  and  the  clerk 
of  the  former  is  thereupon  allowed,  on  message  for  the  purpose,  to 

>  J.  of  H.  I.  520;   Same,  VII.  356;  Same,  rected,  by  the  amendment  being  disagreed 'o. 

14th  Cong.  1st  Sess.  649;  J.  of  S.  14th  Cong.  J.  of  H.  L  267. 

l8t  Sess.  857;  Cong.  Globe,  XII.  3&0.  »  J.  of  S.  27th  Cong.  3d  Sess.  283. 

*  In  one  case,  where  an  amendment,  which  *  J.  of  H.  27th  Cong.  3d  Sess.  520;  Same, 

was  not,  in  fact,  adopted,  was  improperly  cer-  25th  Cong.  2d  Sess.  1244. 
tified,  the  mistake  appears  to  have  been  cor- 


Chap.  XXIIL]  matters  connected  with  the  passing  of  bills.  927 

affix  his  signature  to  the  bill  at  the  clerk's  table  of  the  latter ;  ^  or 
the  l)ill  m:iy  be  sent  to  be  attested.''^ 

2394.  Where  a  bill  is  sent  from  one  house  to  the  other  by  mis. 
take,'^  or  is  wanted  in  the  originating  house  for  the  purpose  of 
reconsidei-ntion,*  or  for  any  other  purpose,''  a  message  is  sent  from 
the  former  requesting  its  return. 

2395.  In  all  the  above-mentioned  cases,  in  which  one  house 
sends  to  the  other  for  the  return  of  a  bill,  the  message  is  considered 
by  the  house  to  which  it  is  sent,  and  Ihe  bill  ordered  to  be  returned, 
at  the  first  convenient  opportunity,  without  formally  rescinding  any 
of  its  former  voles'^  with  relation  to  the  bill.  When  a  bill,  re- 
turned in  this  manner,  is  received  back,  it  is  begun  again  as  a  new 
biU. 

2396.  It  is  a  general  rule,  that  it  is  not  competent  for  either 
house,  or  any  of  its  committees,  to  proceed  upon  a  bill  or  other 
paper  which  is  not  in  its  possession ;  and  in  such  case,  therefore, 
when  a  biU,"  joint  resolution,^  or  series  of  amendments,''  from  the 
other  branch,  is  accidentally  lost  or  mislaid,  the  house,  to  which  the 
same  is  sent,  may  request  of  the  other,  by  message,  a  certified  copy 
of  such  bill,  resolution,  or  amendments,  and  this  request  is  never 
refused ;  but  if  the  bill  or  other  paper  in  question  is  of  the  same 
house,  and  is  there  referred  to  a  committee  of  the  whole,  the  com- 
mittee, on  reporting  the  fact  that  the  paper  referred  to  it  is  lost  or 
mislaid,  or  that  it  has  been  sent  to  be  printed,  and  is  not  likely  to 
be  returned  in  season,  may  be  deferred,^'*  or  the  committee  may  pro- 
ceed upon  a  copy  furnished  by  a  member.^^ 

2397.  The  proceedings  on  a  bill,  at  any  stage  of  its  progress, 
may  be  interrupted,  by  its  being  ordered  to  lie  on  the  table ;  and  in 
this  case,  when  the  consideration  of  the  bill  is  resumed,  it  is  taken 
up  at  the  precise  point  at  which  it  was  suspended.^- 

2398.  The  distinction  bet\veen  public  and  private  biUs,  which,  in 
parliament,  leads  to  the  separate  consideration  of  the  latter,  upon  a 
distinct  system,  is  recognized  in  all  our  assemblies,!^  ^^  which  it  is 

J  J.  of  H.  25th  Cong.  2d  Sess.  254.  32d  Cong.  1st  Sess.  1026 ;  J.  of  S.  32d  Cong. 

»  J.  of  S.  25th  Cong.  2d  Sess.  133.  1st  Sess.  592. 

3  J.  of  S.  25th  Cong.  1st  Sess.  375;  Same,  »  J,  of  H.  32d  Cong.  1st  Sess.  348;  J.  of  S. 

80th  Cons.  2d  Sess.  291;  Same,  1st  Sess.  170.  32d  Cong.  1st  Sess.  209,  211. 

«  J.  of  H.  28th  Cong.  2d  Sess.  554,  555.  «  J.  of  H.  IX.  521.  523. 

8  J.  of  H.  30th  Cong.  1st  Sess.  404,  972;  J.  '«  J.  of  U.  IX.  339. 

of  S.  32d  Cong.  1st  Sess.  472.  "  Cong.  Globe,  IX.  169. 

•J.  of  S.  23d  Cong.  1st  Sess.  375;  Same,  li  j.  of  H.  L  241,  242,  245. 

25th  Cong.  2d  Sess.  133;  Same,  27th  Cong.  1st  >'^  Whether  n  bill  belongs  to  the  one  class  of 

Sess.  241,  246;  Same,  3d  Sess.  268.  the  other,  is  a  question  of  order.    Cong.  Globe, 

1  '.  of  S.  19th  Cong.  2d  Sess.  131;  J.  of  H.  XII.  183;  Same,  XIII.  636. 


928  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 

attended,  in  a  greater  or  less  degree,  according  to  the  character  of 
each  assembly,  with  corresponding  differences  in  the  proceedings. 
Among  these  differences,  one  of  the  most  common  is  the  passing 
of  an  order,  on  the  report  of  a  committee  or  otherwise,  requiring 
the  parties  interested  in  the  bill,  or  applying  for  it,  to  give  notice  of 
such  bill  or  application  in  the  manner  pointed  out  in  the  order, 
either  to  all  persons  generally,  or  to  particular  persons  named,  re- 
quiring them  to  appear,  on  a  day  fixed,  and  show  cause,  if  they 
have  any,  why  the  application  should  not  be  granted.^  In  the  mean 
time  all  further  proceedings  are,  of  course,  suspended. 

2399.  It  is  not  consistent,  as  we  have  seen,  Mdth  the  ordinary 
practice  of  parliament,  for  one  house  to  inform  the  other  by  what 
number  a  bill  passes ;  ^  yet  where  a  bill  or  other  measure  passes 
without  a  dissenting  vote,  it  is  allowable  to  insert  that  fact  in  the 
attestation ;  ^  and  it  is  not  disrespectful  in  one  house  towards  the 
other,  to  recommend  the  bill,  as  one  of  great  importance,  to  the 
consideration  of  the  house  to  which  it  is  sent.'*  For  the  same 
reason,  if  a  bill,  sent  by  one  house  to  the  other,  is  there  apparently 
neglected,  the  first  house  may  remind  the  other  of  it  by  message.-^ 
So  one  house  may  be  reminded  by  the  other  of  the  report  of  a 
committee  of  conference  on  the  disagreeing  votes  of  the  two  houses 
concerning  a  bill.*^ 

2400.  When  a  bill,  sent  from  one  house  to  the  other,  is  of  the 
same  title,  or  for  the  same  purpose,  with  a  biU  of  the  other  already 
pending  in  that  branch,  the  course  is,  as  one  bill  only  is  necessary 
to  be  passed,  to  refer  them  both  to  the  same  committee,  and,  upon 
their  report,  to  reject  the  one  and  pass  the  other."  The  bill  passed 
may  ordinarily  be  amended,  if  necessary,  by  provisions  taken  from 
the  other ;  ^  but  in  the  house  of  representatives  in  congress,  it  is 
provided,  by  rule,  that  no  bill  shaU  be  amended  by  the  annexation 
or  incorporation  of  any  other  biU  pending  before  the  house.  The 
operation  of  this  rule,  however,  may  be  prevented,  by  a  slight 
change  of  phraseology .'^ 

2401.  Amendments,  which  are  merely  the  necessary  consequence 
of  another  and  principal  amendment,  cohere  with  it,  and  are  dis- 

1  J.  of  S.  IT.  78,  80.  munications  between  the  speakers,  or  mem* 

2  Ante,  §  2360.  bers  of  the  two  houses." 

»  Par].  Reg.  XV.  238.  «  J.  of  S.  23d  Cong.  2d  Sess.  239;  Reg.  of 

*  Jefferson's  Manual,  Sec.  XLVIL  Deb.  XL  Part  2, 1661. 

» .Jefferson's  Manua],  Sec.  XLVIIL;   Cong.         ^  J.  of  H.  VIIL  651;  Same,  14th  Cong.  2d 

Globe,  XV.  1084.    Mr.  Jefferson  remarks,  that  Sess.  453,  454,  455. 
if  this  apparent  neglect  "  be  mere  inattention,         ^  Reg.  of  Deb.  IV.  Part  1,  631. 
it  is  better  to  have  it  done  informally,  by  com-        »  Cong.  Globe,  XIV.  85. 


Chap.  XXIIL]  matters  connected  with  the  passing  of  bills.  929 

posed  of,  as  matters  of  form  only,  by  a  vote  on  the  principal  amend- 
ment; thus,  where  the  senate  of  the  United  States  adopted  an 
amendment  to  a  bill  from  the  house,  relating  to  the  ajiportion- 
ment  of  representatives,  changin,£^  the  ratio  of  representation,  and 
other  amendments  in  subsequent  clauses,  changing  the  numbers  of 
the  representatives  to  be  elected,  accordingly,  it  was  held,  in  the 
house,  that  the  latter  were  consequent  only  upon  the  former,  and 
as  such,  might  be  treated  by  the  clerk  as  merely  matters  of  form, 
without  any  specific  vote  thereon  ;  ^  Imt  this  principle  does  not  ex- 
tend to  errors,  which  are  merely  clerical,  and  which  must  still  be 
corrected  by  motion  and  vote  only.'^ 

2402.  It  sometimes  happens  that  the  vote  on  a  bill  is  incorrectly 
announced,  either  in  consequence  of  some  error  in  the  computa- 
tion,^ or  in  the  record  ^  of  the  vote,  and  that  the  error  is  aftcn-wards 
discovered,  or  the  mistake  corrected,  and  the  true  result  ascertained  ; 
as,  for  example,  that  an  amendment  reported  by  a  committee  on 
the  bill  was  adopted,''  or  that  the  bill  was  not  ordered  to  lie  on  the 
table,*^  or  that  the  bill  passed; '  when,  in  point  of  fact,  the  amend-, 
ment  was  not  adopted,  or  the  bill  was  ordered  to  lie  on  the  table, 
or  that  it  was  rejected.  In  these  cases,  at  whatever  distance  of 
time  the  discovery  is  made,  or  the  correction  takes  place,  the  subse- 
quent proceedings,  wnth  reference  to  such  bills,  are  null  and  void ; 
and  the  bill  stands  before  the  house  for  its  action  thereon,  if  any  is 
necessary  or  expedient,  precisely  as  if  the  vote  had  been  correctly 
announced  when  it  was  taken.  Thus,  in  one  of  the  above-men- 
tioned cases,^  the  house  having  ordered  the  bill  to  be  engrossed, 
after  the  vote  on  the  amendment  had  been  declared,  and  before  it 
had  been  corrected,  it  was  held,  in  the  house  of  representatives  of 
the  United  States,  that  the  proceedings  commenced  at  that  point, 
and  that  the  house  was  entitled  to  a  new  vote  on  the  engi-ossment. 
In  several  of  the  cases  cited,  it  was  held  by  the  same  house,  that  a 
motion  to  reconsider  could  only  be  made  by  one  \\'ho  voted  wiih 
the  prevailing  party,  and  that  this  motion  must  be  made  within  ihe 
time  limited  by  the  rules  and  orders,  reckoned  from  the  time  when 
tlie  vote  was  given,  and  not  from  the  time  when  the  result  was  cor- 
rectly announced. 

'i  J.  of  II.  27th  Contr.  2d  Sess.  965.  8  j.  of  H.  30th   Cong.  1st  Ses?.  1079,  1080 

«  Cong.  Globe,  VII.  28.  1081. 

3  J.  of  H.  31st  Cong.  1st  Sess.  1436;  Same,         »  J.  of  H.  31st  Cong.  2d  Soss.  171. 

2d  Sess.  171;  Cong.   Globe,  XV.  856;  Same,         'J.  of  H.  31st  Cong.  1st  Sess.  1436;  Cong 
XXI.  17PC.  Globe,  XV.  856;  Same,  XXI.  1786. 

■»  ,T.  of  II.  26th  Cong.  2d  Sess.  31,  32:  Same,         «  J.  of  H.  30th  Cong.  1st  Sess.  1079,  1080 
10th  Cong.  1st  Sess  1079,  1080,  1081.  1081. 

78* 


930  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIII. 

2403.  A  form  of  legislation,  which  is  in  frequent  use  in  this 
country,  chiefly  for  administrative  purposes  of  a  local  or  temporary 
character,  sometimes  for  private  purposes  only,  is  variously  known, 
in  our  legislative  assemblies,  as  a  joint  resolution,  a  resolution,  or  a 
resolve.  This  form  of  legislation  is  recognized  in  most  of  our  con- 
stitutions, in  which,  and  in  the  rules  and  orders  of  our  legislative 
bodies,  it  is  put  upon  the  same  footing,  and  made  subject  to  the 
same  regulations,  with  bills  properly  so  called.  In  congress,  a  joint 
resolution,  which  is  the  name  given  in  that  body  to  this  kind  of 
legislation,  is  there  regarded  as  a  bill.^ 

2404.  It  is  not  uncommon,  after  a  bill  has  been  passed  through 
all  its  regulac  stages  in  either  house,  for  that  house  to  discover,  that 
an  amendment  to  the  bill  has  been  improperly  adopted  or  rejected, 
and  to  desire  a  correction  of  the  erroneous  vote.  This  can  only  be 
done  in  parliament,  if  at  all,  ordinarily  by  means  of  a  new  bill. 
But,  in  our  legislative  assemblies,  as  the  regular  stage  for  amend- 
ing The  bill  has  passed,  the  correction  can  only  take  place  by  unani- 
mous consent,  or  if  objection  is  made,  by  a  series  of  reconsidera- 
tions. This  is  the  method  usually  resorted  to.  Thus,  if  the  com- 
mittee to  whom  a  bill  is  referred  after  the  second  reading,  report 
the  same  wdth  an  amendment,  which  is  improperly  adopted  or  re- 
jected, and  the  bill  is  thereupon  read  a  third  time,  and  passed,  and 
it  is  then  discovered  that  the  vote  on  the  amendment  is  incor- 
rect, and  a  correction  thereof  is  desired  before  the  bill  passes.  In 
order  to  accomplish  this,  a  motion  is  made  to  reconsider  the  vote, 
by  which  the  bill  passed,  and  this  being  decided  in  the  affirmative, 
the  question  then  recurs  on  passing ;  and  this  motion  being  decided 
in  the  negative  or  withdrawn,  a  motion  is  then  made  on  which 
similar  proceedings  take  place,  that  the  vote  on  ordering  the  bill  to 
a  third  reading  be  reconsidered.  The  stage  at  which  the  amend- 
ment was  voted  upon,  being  thus  reached,  the  mistake  may  be 
corrected  by  means  of  a  reconsideration ;  and  the  mistake  being 
corrected,  the  bill  is  then  again  passed  through  all  its  regular 
stages.  The  only  difficulty  likely  to  be  encountered  in  this  course 
of  proceeding  occurs,  when  the  previous  question  has  been  moved 
upon  the  bill  and  sustained  at  any  one  of  its  stages.  When  the 
vote  therefore  has  been  reached,  it  may  be  reconsidered  like  any 
other ;  but  the  question  thereupon  recurs  on  the  motion  for  the 
previous  question,  which,  in  order  to  accompHsh  the  end  in  view, 
must  be  withdrawn ;  inasmuch  as  a  negative  decision  of  it  will 

1  J  of  H.  32d  Cong.  1st  Sess.  679;  Cong.  Globe,  XII.  384,  385. 


Chap.  XXIIL]  matters  connected  with  the  passing  of  i.ills.  931 

postpone  the  bill  for  that  day,  and  an  afTirmative  will  compel  the 
house  to  take  the  question,  on  which  it  is  moved,  immediately,  and 
without  alteration. 

2405.  It  remains  to  be  seen  in  what  manner  and  to  what  extent 
the  passing  of  bills  is  aOected  in  this  country,  by  constitutional  pro- 
visions ;  in  reference  to  all  which  it  may  be  stated  generally,  that 
those  which  require  the  ol^servance  of  certain  formalities  are  ecjually 
imperative  with  those  which  withdraw  certain  topics  altogether 
from  ordinary  legislation;  and  that  it  is  competent  in  the  one  case 
as  well  as  in  the  other,  for  the  courts  of  law  to  set  them  aside  for 
unconstitutionality.  The  American  constitutions  contain  many 
provisions  on  this  subject ;  which,  as  it  would  take  too  much  space 
to  notice  in  detail,  may  all  be  arranged  in  four  different  classes. 

1.  Provisions,  which  withdraw  certain  topics  altogether  from  ordi- 
nary legislation ;  one  of  the  most  common  of  which  is  in  express 
tevjus  that  no  law  shall  be  passed  impairing  the  obligation  of  con- 
tracts, and  it  is  implied,  in  every  constitution,  that  no  law  shall 
be  passed  to  alter  its  form,  or  which  is  repugnant  to  its  substance. 

2.  Provisions  which  require  the  observance  of  certain  formalities 
in  the  passing  of  all  laws.  The  constitution  of  New  York  con- 
tains a  good  niusti-ation  of  the  provisions  of  this  class.  It  declares 
that  "  no  bill  shall  be  passed  unless  by  the  consent  of  a  majority  of 
all  the  members  elected  to  each  branch  of  the  legislature,  and  the 
question  upon  the  final  passage  shall  be  taken  immediately  upon 
its  last  reading,  and  the  yeas  and  nays  entered  on  the  journal." 

3.  Provisions,  which  declare  that  no  bill  of  a  particular  description 
or  for  a  given  purpose  shall  be  passed  but  with  certain  formalities. 
The  constitution  of  Rhode  Island,  provides  that  when  bills  are  pre- 
sented in  either  house,  for  the  creation  of  certain  corporations,  they 
shall  be  continued,  and  public  notice  given  thereof,  in  the  mean 
time,  until  a  new  election  of  members  shall  have  taken  place ; 
the  constitution  of  Delaware  provides,  that  no  act  of  incorporation, 
except  for  certain  pm-poses,  shall  be  enacted,  which  does  not  contain 
a  reserved  power  of  revocation  by  the  legislature,  and  in  many  of  the 
constitutions  it  is  required,  that  laws  for  particular  purjioses  shall 
only  pass  by  certain  majorities  as,  in  the  last-mentioned  State,  no 
act  of  incorporation  can  be  passed  without  the  concuiTcnce  of 
two  thirds  of  each  branch.  4.  Provisions,  which  require  that  bills 
of  a  certain  description  shall  originate  in  one  house,  in  preterence 
to  the  other,  of  which,  the  most  important  is  that  already  spoken 
of,  revenue  bills. 

2406.  In  determining  whether  a  given  act  is  constitutional,  or 


932  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

whether  it  is  inoperative,  as  contravening  some  of  these  constitu- 
tional provisions,  courts  of  justice  proceed  in  different  manners,  ac- 
cording as  the  act  in  question  belongs  to  one  or  another  of  the 
above-mentioned  classes.     In  determining  whether  the  act  belongs 
to  the  tu-st  class,  its  internal  contents  only  are  to  be  considered ;  in 
determining  whether  the  requu-ed  formahties  have  been  complied 
with,  the  internal  contents  of  the  act  ordinarily  furnish  no  evidence, 
but  the  inquiry  must  be  extraneous  altogether;  and,  in  determining 
whether  the  act  in  question  comes   under   the   third   and  fourth 
classes  respectively,  both  these  sorts  of  inquiry  must  be  combined  ; 
first :  it  must  be  determined,  from  the  internal  character  of  the  act, 
whether  it  is  of  the  particular  description  specified ;  and,  second,  if 
BO,  whether  the  requisite  formalities  have  been  complied  with.     In 
regard  to  the  requisition  of  certain  formalities,  four  remarks  may 
be  made :  first,  that  if  no  peculiar  formalities  are  required,  the  au- 
thentication of  the  act,  by  the  signatures  of  the  presiding  officers,  is 
only  requisite ;  second,  the  publication  of  the  act  in   question,  by 
competent  authority  among  the  laws,  is,  at  least,  presumptive  evi- 
dence that  it  was  passed  with  the  requisite  formalities  ;  third,  there 
seems  to  be  no  good  reason  why  the  formahties  required  should  not 
appear   on   the   bill  itself,  or  in  the  attestation  at  the  end ;  but, 
fourth,  if  the  formalities  requii-ed  do  not  appear  in  this  manner,  they 
can  only  be  proved  or  disproved,  in  the  absence  of  a  law  for  the 
purpose,  by  the  testimony  of  the  proper  officer,  accompanied  by  his 
book  of  records. 


LAW  AND  PRACTICE 


Of 


LEGISLATIVE    ASSEMBLIES. 


PAET    EIGHTH. 

OF  THE   PASSING   OF   BILLS, 


SECOND    DIVISION. 

PRIVATE     BILLS.* 

2407.  The  nature  of  private  bills,  as  distinguished  from  public, 
has  akeady  been  explained ;  and  it  has  also  been  seen,  that  the  lat- 
ter are  so  far  judicial  in  their  character,  that  the  proceedings  with 
leference  to  them  frequently  involve  the  exercise  of  judicial  inquiry 
and  determination.  There  are  cases,  indeed,  in  which  the  interests 
of  individuals  are  not  adversely  concerned,  but,  in  which,  the  pass- 
ing of  a  private  bill  simply  confers  a  benefit  upon  the  party  peti- 
tioning, without  injuriously  affecting  any  one,  as,  for  example,  a  bill 
to  naturalize  or  to  change  the  name  of  an  individual ;  but,  in  gen- 
eral, private  bills  are  of  such  a  nature,  that  they  do  or  may  affect 
either  individuals  or  the  public  in  an  injm-ious  manner. 

*  In  prepnring  the  following  account  of  the  my  purposes,  I  have,  in  many  instances,  con- 
proceedings  in  the  two  houses  of  the  British  densed  and  abridged;  in  others,  thrown  it  into 
parliament,  in  the  passing  of  private  bills,  I  a  somewhat  different  arrangement;  and,  in 
have  availed  myself,  to  the  fullest  extent,  of  other  cases,  I  have  not  scnipled  (after  the 
the  treatise  of  Mr.  May;  to  whom  I  desire,  mannerof  the  comjtilers  of  law-books)  to  make 
here,  to  acknowledge  my  great  obligations,  literal  extracts,  sometimes,  with  slight  verbal 
In  adapting  the  matter  of  his  thu-d  book  to  alterations. 

(933) 


934  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

2408.    In  order  to  protect  the  interests,  public  or  private,  which 
may  thus  be  affected,  the  proceedings  with  reference  to  private  bills, 
besides  being  in  general  similar  to  those  which  take  place  with  ref- 
erence to  public  bills,  are  nevertheless  partly  judicial  in  their  char- 
acter, and  are  differently  conducted  in  several  important  respectS; 
chiefly  by  the  addition  of  certain  proceedings  which  do  not  occur 
in  the  case  of  public  bUls.     The  persons,  for  whose  benefit  a  private 
bill  is  introduced,  appear  as  suitors  for  it ;  while  those  who  appre- 
hend any  injury  from  its  provisions,  are  admitted  as  adverse  parties. 
The  proceedings  are,  in  some  respects,  assimilated  to  those  of  couris 
of  justice  ;  and  various  preliminary  notices  are  required  to  be  given 
and  proved,  and  conditions  to  be  observed.     If  the  parties  interest- 
ed do  not  sustain  the  bill  in  its  progress,  by  pursuing  the  requisite 
forms  and  regulations,  it  will  not  be  forwarded  by  the  house  in 
which  it  is  pending ;  and  if  abandoned  by  the   parties,  and   no 
others  undertake  to  prosecute  it,  the  biU  wiU  be  lost,  ho\\ever  sensi- 
ble the  house  may  be  of  its  value.     Fees  are  also  required  to  be 
paid  by  every  party  promoting  or  opposing  a  private  bill,  or  petition- 
ino-  for  or  opposing  any  particular  provision.     The  solicitation  of  a 
bill  in  parliament  is  so  far  regarded  by  courts  of  equity  as  an  ordi- 
nary suit,  that  the  promoters  of  a  biU  have  been  restrained  by  in- 
junction from  proceeding  with  it,  on  the  ground,  that  its  object  was 
to  set  aside  a  covenant ;  and  parties  have  been  restrained,  in  the 
same  manner,  from  appearing  as  petitioners  against  a  private  bill 
pending  in  the  house  of  lords.     Such  injunctions  are  justified,  on 
the  ground,  that  they  act  merely  upon  the  person  of  the  suitor,  and 
do  not  interfere  with  the  jurisdiction  of  parliament ;  which  would 
not  be  true  in  the  case  of  public  biUs.i 

2409.  This  union  of  judicial  with  legislative  functions,  in  the 
passing  of  private  biUs,  is  not  confined  to  the  forms  of  proceeding, 
merely,  but  is  equally  manifest  in  the  inquiries  and  decisions  of 
parliament  upon  the  merit  of  such  bills.  As  a  court  parliament 
adjudicates  upon  the  individual  interests  involved  in  a  private  biU ; 
while,  in  its  legislative  capacity,  it  takes  care,  that  individual  shall 
not  be  promoted  at  the  expense  of  public  interests.  However 
much  the  interests  of  the  promoters  of  a  private  bill  may  be  ad- 
vanced by  its  success,  yet  if  it  is  likely  to  prove  hurtful  to  the  com- 
munity, it  wlU  be  rejected  as  if  it  were  a  public  measure,  or  quali- 
fied by  restrictive  provisions  not  solicited  by  the  parties.  In  order 
to  secure  this  protection  to  the  public  interests,  the  chakman  of 

1  May,  488,  489. 


PRIVATE   BILLS.  935 

committees  of  the  whole  in  the  lords,  and  the  chairman  of  the 
committee  of  ways  and  means  in  the  commons,  are  intrusted  with 
the  peculiar  care  of  unopposed  private  bills,  and  wiih  the  general 
revision  of  all  other  private  bills.     The  agency  of  different  govern- 
ment boards  is  also  brought  in  aid  of  the  legislature  for  the  same 
purpose.     But  while  private  bills  are  thus  subjected  to  a  variety  of 
pecuUar  proceedings,  yet,  in  every  separate  stage,  when  they  come 
before  either  house,  they  are  treated  precisely  as  if  they  were  pub- 
lic bills.     They  are  read  as  many  times,  and  similar  questions  are 
put,  except  when   otherwise   specially  directed    by  the    standing 
orders;  and  the  same  rules  of  proceeding  and  debate  are  main- 
tained throughout.^     The  differences  above  alluded  to  it  is  proposed 
now  to   describe.     But  before   entering   upon  the  description,  it 
will  be  convenient  to  give  an  account  of  what  may  be  called  the 
parhamentary  machinery,  by  means  of  which  these  peculiarities  of 
proceeding  are  conducted.     The  proceedings  with  reference  to  pri- 
vate bills  are  so  nearly  the  same  in  both  houses,  that  in  order  to 
give  an  idea  of  them,  it  will  be  sufficient  to  present  a  sketch  of 
their  progress  in  the  first  place  in  the  house  of  commons,  and  afier- 
wards  to  point  out  some  of  the  principal  differences  between  the 
proceedings  in  that  and  in  the  other  branch.     This  com-se  will  be 
the  more  convenient  also,  from  the  fact,  that,  inasmuch  as  by  the 
privileges  of  the  house  of  commons,  every  bill  which  involves  any 
charge  or  burden  upon  the   people,  by  way  of  tax,  rate,  toll,  or 
dui  v,  must  be  first  brought  into  that  house,  much  the  greater  num- 
ber of  private  bills,  being  of  that  character,  are  necessarily  passed 
first    by  the   commons.     Besides   these,  there    are   others,  which, 
though  they  may  originate  in  either  house,  are  generally  first  solic- 
ited in  the  commons.     Those  private  bills,  which  must  or  generally 
do  originate  in  the  house  of  lords,  such  as  naturafization,  name, 
estate,   and  divorce  bills,  are  few  in   number.     In  what  follows, 
therefore,  the  house  of  commons  alone  is  always  to  be  understood 
as  referred  to,  unless  the  house  of  lords  is  expressly  mentioned,  or 
embraced  in  the  terms  used. 

2410.  In  pursuance  of  this  general  plan,  the  passing  of  private 
bills  will  be  treated  in  the  seven  following  entitled  chapters, 
namely: — I.  Of  the  standing  orders  and  proceedings  peculiar  to 
the  hearing  of  private  bills ;  II.  Of  the  presentation  and  reference 
of  the  petition  and  proceedings  thereon ;  III.  Of  the  bringing  in 
and  first  and  second  reading  of  a  private  biU;  IV.  Of  the  com- 

»  May,  489,  490. 


936  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIII 

mitment  and  proceedings  in  committee ;  V.  Of  the  report  of  the 
committee  and  proceedings  thereupon ;  recommitment ;  third  read- 
ing; passing;  amendments  between  tlie  two  houses;  VI.  Of  the 
differences  in  the  modes  of  proceeding  between  the  two  houses; 
VII.  Of  private  bills  after  receiving  the  royal  assent. 


CHAPTER    FIRST. 

OF  THE  STANDING  ORDERS    AND  PROCEEDINGS  PECULIAR  TO  THE 

PASSING  OF  PRIVATE  BILLS, 


Section  I.    Notices. 

2411.  In  order  to  give  due  notice,  both  to  the  public,  and  to  par- 
ties who  may  be  individually  interested  in  private  bills  of  a  local  or 
general  character  and  operation,  certain  public  and  personal  notices 
are  required  to  be  previously  given  of  intended  applications  for 
leave  to  introduce  such  bills.  For  this  purpose,  the  standing  orders 
of  both  houses,  which,  in  reference  to  this  subject,  have  been  grad- 
ually assimilated  to  each  other,  have  arranged  those  bills,  concern- 
ing which  notices  are  required,  into  two  classes,  in  reference  to  each 
of  w^hich  different  forms  of  notices  are  required.  The  second  class 
consists  of  bills  for  making,  maintaining,  varying,  extending,  or 
enlarging  any  aqueduct,  archway,  bridge,  canal,  cut,  dock,  ferry, 
(where  any  work  is  to  be  executed,)  harbor,  navigation,  pier,  port, 
railway,  reservoir,  sewer,  street,  tunnel,  turnpike,  or  other  pubUc 
carriage  road,  waterwork,  and  of  bills  for  making  and  maintaining 
an  act  for  drainage,  being  a  new  work,  where  it  is  not  provided  in 
the  bill,  that  the  same  shall  not  be  of  more  than  eleven  feet  width 
at  the  bottom.  The  first  class  may  be  said  to  include  bills  of  every 
desoription  not  embraced  in  the  second.^  In  regard  to  some  bills, 
it  is  also  required,  that  plans  of  what  is  proposed  to  be  done,  should 
be  previously  prepared  and  deposited  where  parties  interested  can 
have  access  to  them.     Thus,  when  application  is  to  be  made  to 

1  May,  495,  496. 


Ghap.  L]   orders  and  proceedings  relative  to  private  bills.  937 

parliament  for  leave  to  introduce  a  bill  for  the  construction  of  a 
railroad,  the  standing  orders  require  that  a  plan  of  the  road  should 
be  deposited  with  the  clerk  of  the  peace  for  each  county,  in  wliich 
the  road  is  proposed  to  be  made.  In  some  cases,  it  is  recjuircd,  that 
estimates  of  the  expense  of  contemplated  work  should  be  pre- 
viously made,  and  some  portion  thereof  deposited  by  the  subscri- 
bers. Various  other  preliminary  condilions,  which  it  would  be 
impossible  and  unnecessary  to  enumerate,  are  also  required  by  the 
standing  orders  to  be  observed,  with  regard  to  different  kinds  of 
biUs. 


Section  II.     Parliamentary  Agents. 

2412.  Parties  interested  in  private  petitions  or  bills  are  repre- 
sented in  their  attendance  upon  parliament  by  a  class  of  official 
persons,  denominated  parliamentary  agents,  analogous  to  attorneys 
in  courts  of  justice,  by  whom  all  the  proceedings  relative  thereto 
out  of  the  house  are  conducted,  and  by  means  of  whose  agency 
the  parties  are  brought  into  communication  with  individual  mem- 
bers. The  agents  are  personally  responsible  to  the  house  for  the 
observance  of  all  the  rules,  orders,  and  practice  of  parliament,  and 
for  the  payment  of  all  fees  and  charges. 

2413.  Before  any  person  is  allowed  to  act  in  this  capacity,  he 
must  subscribe  a  declaration  before  one  of  the  clerks  in  the  private 
bill  office,  engaging  to  observe  and  obey  all  the  rules  of  the  house, 
and  to  pay  all  fees  and  charges  when  demanded,  and,  if  required, 
must  enter  into  a  recognizance  in  the  sum  of  <£500,  for  the  per- 
formance of  his  duty  in  respect  to  such  payment.  He  is  then  reg- 
istered in  a  book  kept  in  the  private  bill  office,  and  is  thereupon 
entitled  to  act  as  a  parliamentary  agent.  It  is  deemed  contrary  to 
the  law  and  usage  of  parliament,  for  any  member  of  the  house  of 
commons,  to  engage  either  by  himself  or  by  a  partner,  in  the  man- 
agement of  private  bills  before  either  house,  for  pecuniary  reward ; 
and  the  same  prohibitions  apply  to  the  clerks  and  other  officers  of 
the  house.  It  is  provided,  also,  by  the  standing  orders,  that  any 
agent,  who  shall  wilfully  act  in  violation  of  the  rules  and  practice 
of  parliament,  or  any  rules  to  be  prescribed  by  the  speaker,  or  who 
shall  wilfully  misconduct  himself  in  prosecuting  any  proceedings 
before  parliament,  or  be  guilty  of  any  wilful  violation  of  the  ses- 
sional standing  orders  of  the  house,  shall  be  liable  to  an  absolute 
or  temporary  prohibition  to  practise  as  a  parliamentary  agent,  at 
the  pleasure  of  the  speaker 

79 


938  LEGISLATIVE    ASSEMBLIES.  [PaRT   VIIL 


Section  III.     Private  Bill  Office. 

2414.  In  order  to  facilitate  the  proceedings  upon  private  bills, 
and,  at  the  same  time,  to  protect  the  public  and  parties  adversely 
interested,  an  office  has  been  established,  denominated  the  "private 
bill  office,"  for  the  transaction  of  much  of  the  business  relating  to 
private  bills,  which  occurs  out  of  the  house.  In  this  office  a  regis- 
ter is  kept,  which  is  open  to  public  inspection,  and  in  which  all  the 
proceedings  are  registered,  from  the  presenting  of  the  petition  to 
the  passing  of  the  bill.^  The  entries  in  this  register  specify  briefly 
each  day's  proceeding  before  the  examiners  or  in  the  house,  or  in 
any  committee  to  which  the  bill  may  be  referred ;  the  day  and  hour 
on  which  the  committee  is  appointed  to  sit ;  the  day  and  the  hour 
to  which  it  maybe  adjourned;  and  the  name  of  the  committee 
clerk.  In  this  office,  all  the  papers  of  every  description,  relative  to 
the  proceedings  on  a  private  bill  are  filed ;  and  all  the  notices  of 
proceedings  to  be  instituted  are  given. 


Section  IV.    Examiners  of  Petitions. 

2415.  Previous  to  the  year  1846,  a  select  committee  on  petitions 
for  private  bills  was  appointed  at  the  commencement  of  each  ses- 
sion, consisting  of  forty-two  members,  whose  business  it  was  to 
inquire  and  report,  in  reference  to  the  several  petitions  referred  to 
it,  whether  the  notices  and  other  preliminary  proceedings  required 
by  the  standing  orders,  before  application  was  made  for  a  bill,  had 
been  regularly  given  and  complied  with.  This  committee,  in  order 
to  facilitate  its  proceedings,  was  authorized  to  divide  itself  into  sub- 
committees, consisting  of  not  less  than  seven  members  each,  among 
whom  the  petitions  referred  to  the  committee  were  distributed  for 
examination.  The  quorum  of  the  committee  was  five  in  opposed, 
and  tliree  in  unopposed  cases.  Since  1846,  the  functions  of  these 
committees  have  been  transferred  to,  and  performed  by,  two  exam- 
iners of  petitions,  not  members,  appointed  by  the  speaker,  in  pursu- 
ance of  standing  orders  for  that  purpose. 

1  Notices  in  relation  to  private  business  are  ceeding;  but  are  required  to  be  delivered  nt 

not  given   by  a  member,  or   entered   in  the  the  private  bill  office,  at  specified  times,  by 

order  book,  like  those  relating  to  public  busi-  the  agents  soliciting  the  bils.     They  are  also 

ness,  except  in  the  case  of  some  special  pro-  printed  with  the  votes. 


Chap.  I.]  orders  and  proceedings  relative  to  private  bills.    939 


Section  V.     Standing  Orders  Committee. 

2416.  A  committee,  connected  with  the  proceedings  on  private 
bills,  is  also  appointed  at  the  commencement  of  each  session,  which 
is  called  the  standing  orders  committee,  consisting  of  eleven  mem- 
bers, five  of  whom  are  a  quorum.  It  is  the  office  of  this  commit- 
tee, upon  the  report  of  the  examiners  of  petitions,  that  the  standing 
orders  have  not  been  complied  with,  in  a  particular  case,  to  de- 
termine and  report  whether  they  ought  or  not  to  be  dispensed 
with ;  whether,  in  their  opinion,  the  parties  should  be  permitted  to 
proceed  with  their  bill  or  any  part  of  it ;  and,  if  so,  under  what 
conditions,  if  any,  as  to  giving  notices,  publishing  advertisements, 
and  depositmg  plans,  when  such  conditions  seem  proper. 


Section  VI.     Committee  of  Selection. 

2417.  A  second  committee,  relative  to  private  bills,  called  the  com- 
mittee of  selection,  is  also  appointed  at  the  commencement  of  each 
session,  consisting  of  the  chairman  of  the  standing  orders  commit- 
tee, who  is  ex  qlJicio  the  chairman  thereof,  and  of  four  other  mem- 
bers, nominated  by  the  house,  three  of  whom  are  a  quorum.  The 
function  of  this  committee,  as  its  name  imports,  is  the  selection 
and  appointment,  according  to  certain  rules,  which  will  be  adverted 
to  hereafter,  of  the  committees  on  private  bills. 


Section  VII.    Chairman  of  the  Committee  on  Ways  and  Means  ; 
Counsel  to  Mr.  Speaker;  Government  Boards. 

2418.  It  has  recently  been  made  the  duty  of  the  chairman  of  the 
committee  of  ways  and  means,  assisted  by  ]\Ir.  Speaker's  counsel, 
who  is  not  a  member,  to  examine  all  private  bills,  whether  opposed 
or  unopposed,  and  to  call  the  attention  of  the  house,  and  f?lso  if 
he  thinks  fit,  of  the  chairman  of  the  committee  on  every  opposed 
private  bill,  to  all  points  which  may  appear  to  hhn  to  require  it ; 
and,  in  the  case  of  unopposed  biUs,  he  is  also  to  report  any  special 
circumstances.  To  facilitate  this  examination,  the  chairman  and 
counsel  are  required  to  be  furnished  wdth  copies  of  the  original  Ijill, 
and  also  of  the  bill  as  proposed  to  be  submitted  to  the  committee. 
K  a  bill  is  returned  from  the  lords  with  amendments,  to  which 


940  LEGISLATIVE  ASSEMBLIES.  [PaRT  VIll. 

amendments  are  proposed  to  be  moved,  the  latter  are  also  required 
to  be  referred  to  the  chakman  and  counsel.^ 

2419.  The  different  public  boards  and  government  depiartments 
are  also  employed  in  the  supervision  of  private  bills.  The  commis- 
sioners of  railways  suggest  such  amendments  in  railway  biUs,  as 
they  think  necessary  for  the  protection  of  the  public,  or  for  the  sav- 
ing of  private  rights.  The  secretary  of  state  for  the  home  depart- 
ment exercises  a  similar  supervision  over  turnpike-road  bills. 
Where  tidal  lands  are  proposed  to  be  interfered  with,  the  lords 
commissioners  of  the  admiralty  require  protective  clauses  to  be 
inserted.  Where  crown  property  is  affected,  the  commissioners  of 
woods  and  forests  have  the  bUl  submitted  to  them.  The  board  of 
trade  offer  suggestions  in  reference  to  bills  affecting  trade,  patents, 
shipping,  and  other  matters  connected  with  the  general  business  of 
that  department.  Bills  relating  to  the  sewerage  of  towns  are  con- 
sidered by  the  board  of  health  ;  and  those  which  affect  the  revenue 
are  brought  to  the  notice  of  the  treasury  and  other  revenue  depart- 
ments. 


Section  VIIL     Time  for  proceeding  with  Private  Bills. 

2420.  The  time  appropriated  for  the  consideration  of  all  matters 
relating  to  private  bills  is  between  four  and  five  in  the  afternoon, 
immediately  after  the  meeting  of  the  house.  Every  afternoon,  a 
quarter  of  an  hour  before  the  time  appointed  for  the  speaker  to 
take  the  chau-,  a  list,  called  the  "  private  business  list,"  is  placed  on 
the  table  of  the  house,  on  which  those  members  enter  thek  names, 
who  have  charge  of  any  private  petition  or  bill,  in  reference  to 
which  a  motion  is  to  be  made ;  and  their  names  are  called  by  the 
speaker  in  the  order  in  which  they  appear  on  the  list.^ 


Section  IX.     Conductdstg  op  the  Proceedings. 

2421.  Every  form  and  proceeding  out  of  the  house,  in  conducting 
a  bill,  is  managed  by  a  parliamentary  agent,  or  by  officers  of  the 
house ;  within  the  house  no  order  can  be  obtained,  but  by  a  motion 
made  by  a  member,  and  a  question  proposed  and  put  or  supposed 
to  be  put  in  the  usual  manner  from  the  chair.  Two  members  are 
generally  requested  by  their  constituents,  or  by  the  parties,  to  un- 

1  May,  526,  527,  656.  ^  May,  511. 


Chap.  L]  orders  and  proceedings  relative  to  private  bills.    941 

dertake  the  charge  of  a  bill ;  ^  they  receive  notice  from  the  agents, 
when  they  will  be  required  to  make  particular  motions,  of  which 
the  forms  are  prepared  for  fhem  ;  and  they  a1  tend  in  their  places,  at 
the  proper  time,  for  that  purpose.  In  ordinary  cases,  the  motion  is 
merely  formal,  prehminary  to  the  u.suul  order  of  the  house ;  but 
whenever  any  unusual  proceeding  becomes  necessary,  notice  is  re- 
quired to  be  given  of  the  motion,  which  is  afterwards  to  be  made 
in  the  usual  manner.^ 


Section  X.     Time  for  presenting  Petitions. 

2422.  All  petitions  for  private  bills  are  required,  by  a  sessional 
order,  to  be  deposited  in  the  private  bill  office,  on  or  before  the 
31st  of  December,  before  the  commencement  of  every  session  of 
parliament ;  and  no  petition  will  be  received  after  that  time,  except 
by  special  leave  of  the  house.  In  order  to  obtain  this  permission, 
a  petition  must  be  presented,  praying  for  leave  to  deposit  a  petition 
for  the  bill,  and  stating  and  explaining  the  peculiar  circumstances, 
which  account  for  the  delay,  and  justify  the  application  for  a  de- 
parture from  the  standing  orders.  The  petition  is  referred  to  the 
standing  orders'  committee,  and,  if  their  report  is  favorable  to  the 
application,  leave  is  given  to  present  the  petition.^ 

Section  XI.    Private  Bills  not  to   be   brought  in,  but  upon 

Petition. 

2423.  It  is  an  express  standing  order,  in  each  house,  that  no  pri- 
vate bill  shall  be  brought  in  otherwise  than  upon  petition.  But  to 
this  order,  in  the  house  of  lords,  bills  for  reversing  attainders,  —  for 
the  restoration  of  honors  and  lands,  —  and  for  restitution  in  blood, 
are  exceptions.  These  bills  are  first  signed  by  the  sovereign,  and 
are  presented  by  a  lord  to  the  house  of  peers,  by  command  of  the 
crown  ;  after  which,  they  pass  through  the  ordinary  stages  in  both 
houses,  and  receive  the  royal  assent  in  the  usual  form.  The  en- 
forcement of  the  order  depends,  of  course,  upon  the  house,  and  may 
be  waived,  if  the  house  thinks  proper.  Sometimes  it  happens,  that 
a  private  bill  is  introduced  and  proceeded  with  as  a  public  bill,  and, 
in  this  case,  on  the  fact  being  pointed  out  to  the  house,  the  bill 

1  The  names  of  the  members  who  are  or-  •  May,  612,  513. 
dered  to  prepare  and  bring  in  the  bill,  are  '  Jlay,  600,  620. 
printed  on  the  back  of  it. 

79* 


942  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIII. 

is  ■v\nthdrawTi.  Sometimes,  however,  when  a  bill  of  a  private  na- 
ture is  brought  in  as  a  public  bill,  without  the  previous  presentation 
of  a  petition,  it  is  allowed  to  proceed,  subject  to  all  Ihe  regulations 
prescribed  for  the  conducting  of  private  bills,  —  to  the  proof  of 
notices  and  other  precedent  conditions,  —  and  to  the  payment  of 
fees.  BiUs  of  this  description  are  generally  for  carrying  out  public 
works  in  which  the  government  is  concerned.^ 


CHAPTER    SECOND. 

OF  THE  DEPOSIT,  PEESENTATION,  AND   REFERENCE   OF  THE  PETI- 
TION, AND  PROCEEDINGS  THEREON. 

2424.  Having  thus  explained  what  may  be  called  the  parlia- 
mentary machinery  relative  to  the  proceedings  upon  private  pe- 
titions and  bUls,  it  is  proposed  now  to  give  a  brief  accoiuit  of  those 
proceedings,  and  of  the  practice  relative  to  private  bills,  in  the  order 
in  which  they  occur.  For  this  purpose,  the  proceedings  and  prac- 
tice of  the  house  of  commons  will  be  first  stated,  and  afterwards 
some  of  the  principal  points  in  which  there  are  diiferences  between 
the  proceedings  and  practice  of  the  two  houses. 

2425.  The  party  or  parties  interested  in  procuring  the  passing 
of  a  private  bill,  having  performed  all  the  preliminary  conditions  as 
to  notices,  etc.,  application  for  leave  to  bring  in  the  bill  is  made  to 
the  house  by  a  petition,  which  must  be  signed  by  the  parties,  or 
some  of  them,  who  are  suitors  for  the  bill.  Where  the  standing 
orders  requne  any  document  to  be  deposited  in  the  private  bill 
office,  before  the  petition  can  be  presented,  such  documents  should 
be  deposited  accordingly,  and  a  receipt  therefor  indorsed  on  the  pe- 
tition. These  preliminaries  having  been  duly  observed,  the  agent 
of  the  petitioners  deposits  their  petition,  with  a  printed  copy  of  the 
proposed  bill  annexed,  in  the  private  bill  office,  on  or  before  the  31st 
day  of  December,  previous  to  the  commencement  of  the  session. 

2426.  When  all  the  petitions  for  private  bills  have  been  thus  de- 
posited, a  general  list  of  them  is  made  out,  on  which  each  is  num- 
bered ;  and  when  the  time  for  depositing  documents,  and  comply 

1  May,  514 


Chap.  1L]  petition  for  private  bill.  943 

ing  with  other  preliminary  conditions,  has  elapsed,  if  it  appears 
that  the  promoters  have  neglected  to  comply  with  any  of  them, 
parties  adversely  interested  may  then  complain  of  such  non-compli- 
ance, by  means  of  memorials  drawn  up  for  the  purpose,  and  depos- 
ited in  the  private  bUl  office,  according  to  the  position  of  the 
petition  for  the  bill  to  which  they  relate,  on  the  general  list.  Upon 
such  a  memorial,  duly  deposited  in  the  private  bill  office,  the  stand- 
ing orders  provide,  that  any  parties  may  appear  and  be  heard  before 
the  examiner,  provided  the  matter  complained  of  is  specifically 
stated  in  the  memorial;  otherwise, the  memorialists  are  not  entitled 
to  be  heard.^ 

2427.  The  memorials  are  addressed  to  the  examiner  of  petitions 
for  private  bills,  and  are  prepared  in  the  same  form,  and  subject  to 
the  same  general  rules,  as  petitions  addressed  to  the  house.  When 
the  time  for  depositing  them  has  expired,  the  opposed  and  unop- 
posed petitions  are  distinguished"  in  the  general  list,  and  the 
petitions  are  set  down  for  hearing  before  the  examiners,  in  the 
order  in  which  they  stand  in  the  general  list,  precedence  being 
given,  whenever  it  may  be  necessary,  to  unopposed  petitions.  The 
public  sittings  of  the  examiners,  of  which  due  notice  is  given,  com- 
mence on  the  25th  of  January,  being  generally  a  few  days  before 
the  meeting  of  parfiament.^ 

2428.  In  order  to  facifitate  the  examination  of  unopposed  peti- 
tions, the  daily  lists  of  cases  set  down  for  hearing  before  each  of  the 
examiners  are  divided  into  opposed  and  unopposed,  and  the  latter 
are  placed  first  on  each  day's  list,  and  first  disposed  of  before  pro- 
ceeding to  the  others. 

2429.  If  the  promoters  of  a  petition  do  not  appear,  when  their 
petition  comes  on  to  be  heard,  the  examiner  is  required  to  strike 
off  the  petition  from  the  general  list.  In  such  a  case,  the  petil  ion 
cannot  afterwards  be  reinserted  on  the  list,  except  by  order  of  the 
house ;  and  if  the  promoters  still  desire  to  proceed  with  their  bill, 
they  must  present  a  petition  to  the  house,  praying  that  the  petition 
may  be  reinserted,  and  explaining  the  circumstances  under  which  it 
was  struck  off.  The  petition  being  referred  to  the  standing  orders 
committee,  they  determine,  upon  the  statement  of  the  parties, 
whether  the  promoters  have  forfeited  their  right  to  proceed,  and 
will  report  to  the  house  accordingly.  K  the  promoters  are  allowed 
to  proceed,  the  petition  is  reinserted  in  the  general  list,  the  usual 
notice  given  by  the  examiner,  and  the  case  heard  by  him  at  the 
appointed  time. 

1  May,  604.  «  May,  600,  501,  602. 


944  LEGISLATIVE   ASSEMBLIES.  [PaRT   VIH 

2430.  When  a  petition  is  called  on,  the  agent  soliciting  the  bill, 
if  the  case  is  proceeded  in,  appears  before  the  examiner  with  a  A^Tit- 
ten  statement  of  proofs,  showing  all  the  requirements  of  the  stand- 
ing orders  applicable  to  the  bill,  which  have  been  complied  with, 
and  the  name  of  every  witness  opposite  each  proof  who  is  to  prove 
the  matters  stated  therein.  At  this  time,  also,  if  a  petition  is 
opposed  on  the  ground,  that  the  standing  orders  have  not  been 
complied  with,  the  memorialists  are  reqmi-ed  to  enter  their  appear- 
ances upon  each  memorial. 

2431.  In  the  mean  time,  the  formal  proofs,  as  they  are  termed, 
proceed  generally  in  the  same  manner  both  in  unopposed  and 
opposed  cases.  Each  witness  is  examined  by  the  agent,  and  the 
affidavits  and  other  necessary  proofs  produced  by  him,  in  the  order 
in  which  they  are  set  down  in  the  statement ;  the  examiner,  also, 
requhing  such  other  proofs  and  explanations  as  he  may  think  fit,  to 
satisfy  him  that  all  the  orders  of  the  house  have  been  comphed  with. 
The  standing  orders  provide,  that  the  examiner  may  admit  affida- 
vits in  proof  of  such  compliance,  unless,  in  any  case,  he  shall 
require  further  evidence.^ 

2432.  In  an  unopposed  case,  if  the  standing  orders  have  been 
complied  with,  the  examiner  at  once  indorses  the  petition  accord- 
ingly. K  not,  he  certifies,  by  indorsement  on  the  petition,  that  the 
standing  orders  have  not  been  complied  with,  and  also  reports  to 
the  house  the  facts  upon  which  his  decision  is  founded,  and  any 
special  circumstances  connected  with  the  case.  In  an  opposed 
case,  when  the  formal  proofs  have  been  completed,  the  examiner 
proceeds  to  hear  the  memorialists,  who,  ordinarily,  take  no  part  in 
the  proceedings  upon  the  formal  proofs.^ 

2433.  When  the  agent  for  a  memorial  rises  to  address  the  exami- 
ner, the  agent  for  the  biU  may  raise  preHminary  objections  to  his 
being  heard  upon  the  memorial,  on  any  of  the  grounds  referred  to 
in  the  standing  orders,  or  on  account  of  any  violations  of  the  rules 
and  usages  of  parliament,  or  other  special  circumstances.  These 
objections  are  distinct  from  any  subsequent  objections  to  particular 
allegations.  If  no  preliminary  objection  is  made,  or  if  it  is  over- 
ruled, the  agent  proceeds  ^dth  the  allegations  in  his  memorial. 
Preliminary  objections  may  be  raised  to  any  allegation  ;  as  that  it 
alleges  no  breach  of  the  standing  orders ;  that  it  is  uncertain  or  not 
sufficiently  specific  ;  that  the  party  specially  affected  has  not  signed 
the  memorial ;  or  that  he  has  withdrawn  his  signature. 

»  May,  603.  «  May,  503,  504. 


Chap.  II. j  petition  for  private  bill.  945 

2434.  The  allegations  of  a  memorial  are  to  be  confined  to 
breaches  of  the  standing  orders,  and  are  not  allowed  to  raise  any 
question  upon  the  merits  of  the  proposed  bill,  which  are  to  be  sub- 
sequently investigated  by  parliament,  and  by  committees  of  either 
house.  Thus  it  may  be  objected,  for  example,  that  a  subscription 
contract  is  not  valid,  or  that  the  subscribers  do  not  thereby  legally 
bind  themselves,  for  the  payment  of  the  money  subscribed ;  but  it 
may  not  be  alleged,  that  the  subscribers  are  insolvent  and  will  be 
unable  to  pay  the  money.  It  may  be  objected,  that  an  estimate  i^^ 
informal,  or  not  such  an  one  as  is  required  by  parliament ;  but  the 
insufficiency  of  an  estimate  is  a  question  of  merits  which  is  not 
within  the  jurisdiction  of  the  examiner.  Again,  in  examining  the 
accuracy  of  a  section  of  a  proposed  railway,  the  examiner  may 
inquire  whether  the  surface  of  the  ground  is  correctly  shown,  or  the 
gradients  correctly  calculated ;  but  he  cannot  entertain  objections, 
which  relate  to  the  construction  of  the  works,  or  other  matters, 
which  are  afterwards  to  be  considered  by  the  committees  on  the 
bill.^  The  examiner  decides  upon  each  allegation,  and,  whenever 
it  is  necessaiy  explains  the  grounds  of  his  decision.  When  all  the 
memorials  have  been  disposed  of,  he  indorses  the  petition  ;  and  if 
the  standing  orders  have  not  been  complied  with,  he  makes  a  report 
to  the  house  as  already  stated.  If  he  should  have  doubts  as  to  the 
due  construction  of  any  standing  order,  in  its  application  to  a  par- 
ticular case,  he  may  make  a  special  report  of  the  facts  to  the  house, 
without  deciding  whether  the  order  has  been  complied  with  or  not. 
When  the  petitions  have  been  indorsed  by  the  examiner,  they  are 
then  returned  to  the  respective  agents,  who  arrange  for  their  presen- 
tation to  the  house.2 

2435.  When  the  petition  for  a  private  bill  has  been  thus  in- 
dorsed by  one  of  the  examiners,  it  must  be  presented  to  the  house, 
by  a  member,  at  some  time  when  private  business  is  in  order,  to- 
gether with  a  printed  copy  of  the  bill  annexed,  not  later  than  three 
clear  days  after  each  indorsement ;  or  if  the  house  is  not  sitting  at 
the  time  of  the  indorsement,  then  not  later  than  three  clear  days 
after  the  first  sitting.  If  the  standing  orders  have  been  complied 
with,  the  bill  is  at  once  ordered  to  be  brought  in.  If  not  complied 
with,  the  petition  is  referred  to  the  standing  orders  committee  ;  and 
the  report  of  the  examiner,  which  had  been  previously  laid  on  the 
table  by  the  speaker,  is  also  referred  to  the  committee.^ 

»  May,  506,  507.  »  May,  618. 

»  May,  507. 


946  LEGISLATIVE   ASSEMBLIES.  [PaRT    VTTI. 

2436.  The  committee  determine  and  report,  whethor  such  stand- 
big  orders  ought  or  ought  not  to  be  dispensed  with,  and  whether, 
in  then-  opinion,  the  parties  should  be  permitted  to  proceed  with 
their  bill,  or  any  portion  of  it ;  and  under  what  conditions,  if  any ; 
as,  for  example,  after  publishing  advertisements,  depositing  plans, 
or  amending  estimates,  when  such  conditions  seem  to  be  proper. 
In  the  case  of  a  special  report,  the  committee  are  to  determine,  ac- 
cording to  then*  construction  of  the  standing  order  in  question,  and 
on  the  facts  stated  by  the  examiner,  whether  the  standing  orders 
have  been  complied  with  or  not.  If  they  determine  that  the  stand- 
ing orders  have  been  complied  with  they  so  report  to  the  house ; 
and  if  not  complied  with,  they  proceed  to  consider  whether  they 
ought  to  be  dispensed  with. 

2437.  K,  after  the  introduction  of  a  private  bill,  any  additional 
provision  should  be  desired  to  be  made  in  the  bill  in  respect  of  mat- 
ters to  which  the  standing  orders  are  applicable,  a  petition  for  that 
purpose  should  be  presented,  with  a  copy  of  the  proposed  clauses 
annexed.  The  petition  will  be  referred  to  the  examiners,  and  me- 
morials may  be  deposited  against  it.  After  hearing  the  parties,  in 
the  same  manner  as  in  the  case  of  the  original  petition  for  the  bill, 
the  examiner  reports  to  the  house  whether  the  standing  orders  have 
been  complied  with  or  not,  or  whether  there  are  any  applicable  to 
such  petition.^  If  the  additional  provisions  petitioned  for  affect  the 
revenue,  the  matter  is  considered  in  a  committee  of  the  whole  on 
some  future  day ;  and  if  the  committee  reports  a  resolution  in  favo»r 
of  the  petition  which  is  agreed  to,  an  instruction  is  given  to  the 
committee  on  the  bill  to  make  provision  accordingly.^ 

2438.  If  the  standing  orders  committee,  upon  such,  reference  to 
them,  report,  that  indulgence  should  be  shown  to  the  promoters  of 
a  bill,  they  are  allowed  to  proceed  either  at  once,  or  after  comply- 
ing with  certain  conditions  suggested  by  the  committee.  To  give 
effect  to  this  permission,  the  proper  course  is,  for  a  member  first  to 
move  that  the  report  be  read,  and  then,  upon  the  reading,  that 
leave  be  given  to  bring  in  the  biU.  If  any  conditions  are  imposed, 
it  will  be  necessary  to  prove  a  compliance  with  them,  before  the 
examiner,  or  before  the  committee  on  the  bill,  when  it  comes  into 
that  stage. 

2439.  If  the  committee  reports,  that  the  standing  orders  ought 
not  to  be  dispensed  with,  the  decision  is  generally  fatal  to  the  biU, 
although  no  reasons  are  ever  assigned  for  their  determination.     The 

1  May,  514.  «  May,  51a. 


Chap.  III.]  bringing  in  of  private  bill.  947 

report  is  not  conclusive,  indeed,  and  cannot  preclude  the  house 
from  giving  a  more  formal  consideration  to  the  case ;  but,  al- 
though parties  have  sometimes  been  allowed  1o  proceed,  under 
peculiar  circumstances,  notvyifhstanding  the  report,  yet  attempts 
are  rarely  made  to  disturb  the  decision  of  the  committee.  But,  in 
order  to  leave  the  question  open,  the  house  only  agrees  to  those 
reports  which  are  favorable  to  Ihe  progress  of  bills,  and  passes  no 
opinion  upon  the  unfavorable  reports,  which  are  merely  ordered  to 
lie  on  the  table. 

2440.  If  the  promoters  of  a  bill,  after  and  notwithstanding  such 
an  adverse  report,  still  entertain  hopes,  that  the  house  may  be  in- 
duced to  dispense  with  the  standing  orders;  or  are  willing  to  aban- 
don portions  of  their  bill ;  or  if  there  be  special  circumstances  in 
the  case,  such  as  the  consent  of  all  parties  ;  or  if  there  be  an  urgent 
necessity  that  the  bill  should  pass  during  the  current  session;  they 
should  present  a  petition  to  the  house,  praying  for  leave  to  deposit 
a  petition  for  a  bill,  and  stating  fully  the  gi'ounds  of  their  applica- 
tion. The  petition  will  be  referred  to  the  standing  orders  commit- 
tee, who,  after  hearing  the  statements  of  the  parties,  will  report  to 
the  house,  whether,  in  their  opinion,  the  parties  should  have  leave 
to  deposit  a  petition  for  a  bill.  If  leave  is  given,  the  petition  is 
deposited  in  the  private  bill  office,  and  the  case  is  examined,  and 
the  petition  certified  by  the  examiners,  in  the  same  manner,  as  if 
it  had  been  originally  deposited  before  the  31st  of  December. 


CHAPTER     THIRD. 

BRINGING    IN    AND    FIRST    AND    SECOND    READINGS    OF    FRIVATE 

BILLS. 

2441.  When  leave  lias  been  obtained,  in  the  ordinary  manner,  to 
bring  in  a  private  bill,  it  is  required  to  be  presented  not  later  than 
three  days  after  the  presentation  of  the  petition.  The  bill  must  be 
printed  on  paper  of  di  folio  size  (as  determined  by  the  speaker)  and 
must  be  presented  in  that  form,  with  a  cover  of  parchment  attached 
to  it,  upon  which  the  title  is  written.  When  presented,  it  is  entered 
in  the  votes  by  a  short  title  given  to  it  in  accordance  with  its  sub- 
ject-matter, and  by  which  it  is  known  through  all  the  subsequent 


948  LEGISLATIVE    ASSEMBLIES.  [PaRT  VIIL 

« 

proceedings.     This  title  cannot  be  changed,  either  by  the  parties,  or 
by  committees,  unless  by  the  special  order  of  the  house. 

2442.  It  is  a  general  rule,  as  has  ah-eady  been  stated  with  regard 
to  public  bills,  that  all  provisions,  which,  by  the  standing  orders,  are 
required  to  be  first  voted  upon  in  committee,  are  to  be  left  blank  in 
the  bill  when  presented.  In  private  bills,  it  is  now  the  rule,  that  all 
provisions  of  this  description,  which  are  intended  to  be  proposed, 
such  as  rates,  tolls,  forfeitures,  etc.,  instead  of  being  left  blank,  shall 
be  inserted  in  italics  in  the  printed  bill.  These  parts  of  the  bill  are 
still  technically  regarded  as  blanks  to  be  filled  up  by  the  committee  ; 
the  only  purpose  of  the  rule  being  to  make  known  to  the  house  the 
particular  provisions  of  this  description,  which  are  intended  to  be 
proposed,  at  the  same  time  that  the  house  are  informed  of  the  other 
provisions  of  the  bill. 

2443.  The  biU  may  be  read  a  first  time  immediately  after  it  is 
presented  ;  but  before  the  first  reading  of  every  private  bill,  except 
name  bills,  printed  copies  of  the  bill  must  be  delivered  to  the  door- 
keeper in  the  lobby  of  the  house,  for  the  use  of  members.^ 

2444.  When  a  bill  has  been  read  a  first  time,  the  regular  course 
of  proceeding  is,  that  it  be  ordered  to  be  read  a  second  time,  but 
without  then  fixing  a  time  for  that  purpose ;  and  the  next  step  in 
its  progress,  is  the  second  reading.  In  the  mean  time,  the  bill 
remains  in  the  custody  of  the  private  bill  office,  where  it  is  care- 
fully examined  by  the  proper  officers,  to  see  whether  it  conforms 
with  the  rules  and  standing  orders  of  the  house.  K  it  is  found  not 
to  be  in  proper  form,  the  examining  clerk  specifies  on  the  bUl  the 
nature  of  the  irregularities  wherever  they  occur.  If  the  bill  is 
improperly  drawn,  or  at  variance  with  the  standing  orders,  or  with 
the  order  of  leave,  the  attention  of  the  house  is  called  to  the  fact  by 
a  member,  and  the  order  for  the  second  reading  is  thereupon  dis- 
charged, the  bill  withdrawn,  and  leave  given  to  present  another. 
The  bill  so  presented  is  distinguished  from  the  first  bill  by  being 
numbered^  and  having  been  read  a  first  time,  is  referred  to  the 
examiners  of  petitions  for  private  bills.^  ^ 

2445.  Between  the  first  and  second  reading,  an  interval  of  three 
and  no  more  than  ten  clear  days  must  elapse  ;  and  the  agent  for  the 
bUl  is  required  to  give  three  clear  days  notice,  in  writing,  at  the 
private  bill  office,  of  the  day  which  is  to  be  proposed  for  the  second 
reading.^ 

24^1:6.    The  second  reading  of  a  private  bUl,  like  the  same  stage 

»  May,  620,  621.  «  May,  621.  »  May.  521. 


Chap.  IV.]  commitment  of  private  bill.  9i9 

in  public  bills,  is  that  in  which  the  house  affirm  or  disafiirin  the 
general  principle  and  expediency  of  the  measure  which  it  propos;'s. 
This  is  the  first  occasion  on  which  the  bill  comes  before  the  house 
otherwise  than  as  a  matter  of  form,  or  in  connection  with  the  stand- 
ing orders;  and  if  there  be  any  opposition  to  it,  upon  its  principle, 
this  is  the  proper  time  for  attempting  its  defeat.  If  the  second 
reading  should  be  deferred  for  three  or  six  months,  or  the  bill 
rejected,  no  new  bill  for  the  same  object  can  be  oilered  until  the 
next  session.^ 


CHAPTER    FOURTH. 

COMMITMENT     AND    PROCEEDINGS    IN    COMMITTEE. 


Section  I.    Of  the  Constitution  of  the  Comjmittees  on  private 
Bills,  and  of  their  Proceedings  in  unopposed  Bills. 

2447.  Wlien  a  private  bill  has  been  read  a  second  time,  the  next 
regular  step  is  the  commitment;  for  which  pm-pose,  it  is  referred  to 
the  committee  of  selection,  to  whom  the  power  is  delegated,  as 
already  stated,  to  appoint  the  committees  on  private  bills.  In  the 
discharge  of  this  duty,  the  committee  proceed  differently,  according 
as  a  bill  is  opposed  or  unopposed.  A  bill  is  opposed,  when  a 
petition  is  presented  to  the  house,  by  depositing  it  in  the  private 
bill  office,  in  which  the  petitioners  pray  to  be  heard  against  the  bill 
by  themselves,  their  counsel  or  agents,  either  generally,  or  only  as 
to  some  of  its  provisions ;  and  no  bill  is  considered  as  opposed 
unless  such  petition  is  deposited  within  seven  clear  days  after  the 
second  reading.^  A  bill  is  also  considered  as  opposed,  in  regard  to 
which  the  chah-man  of  the  ways  and  means  reports  to  the  house, 
that  it  ought  to  be  so  treated. 

2448.  It  is  the  business  of  this  committee  to  classify  the  bills, 
nominate  the  members  of  the  committees  to  whom  they  are 
referred,  and  otherwise  arrange  the  private  business  of  the  session. 
For  this  purpose,  all  the  private  bills  of  the  session  are  laid  before 

>  il;iv,  522.  «  May,  523,  524. 

80 


950  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

them  by  the  promoters,  at  their  first  meeting,  and  are  arranged  by 
the  committee  into  groups  of  such  as  may  conveniently  be  sub- 
mitted to  the  same  committee.  At  the  same  time,  they  name  the 
bill  or  bills  which  are  to  be  taken  into  consideration  on  the  first  day 
of  the  meeting  of  the  committee.^ 

2449.  Every  unopposed  private  bill  is  referred,  by  the  committee 
of  selection,  to  the  chairman  of  the  committee  of  ways  and  means, 
and  two  other  members  of  the  house,  one  of  whom  is  to  be  a  mem- 
ber who  had  been  ordered  to  prepare  and  bring  in  the  bill,  and 
the  other  a  member  not  locally  interested. 

2450.  Opposed  private  bills  are  referred  to  a  chairman  and  four 
members  not  locally  or  otherwise  interested,  to  whom  are  added,  in 
certain  cases,  members  representing  the  county  or  borough,  to 
which  the  bill  or  bills  specially  relate.  The  members,  who  are 
added  in  respect  of  local  representation,  however,  are  merely  en- 
titled to  attend  and  take  part  in  the  proceedings  of  the  committee 
upon  the  bill,  in  respect  of  which  they  are  added,  but  have  no  vote 
upon  any  question  that  may  arise.^ 

2451.  Every  railway  bill  committee  is  to  consist  of  a  chairman 
and  four  members  not  locally  or  otherwise  interested  in  the  bill  or 
bills  referred  to  them.  Every  unopposed  railway  bill,  which  has 
not  been  included  in  a  group,  or  has  been  withdrawn  from  a  gi'oup, 
is  referred  in  the  same  manner  as  other  unopposed  private  bills.^ 

2452.  The  committee  of  selection  give  each  member  of  a  com- 
mittee so  appointed,  fourteen  days  notice,  at  least,  by  publication 
in  the  votes,  and  by  letter,  of  the  week  in  which  he  is  required  to 
be  in  attendance,  to  serve  as  a  member  not  locally  interested  ;  anc' 
they  also  give  him  sufficient  notice  of  his  appointment  as  the  mem- 
ber of  a  committee,  and  transmit  to  every  member  not  locally  or 
otherwise  interested,  a  blank  form  of  declaration,  .which  he  is  to 
return  forthwith,  properly  filled  up  and  signed,  "  that  his  constitu- 
ents have  no  local  interest,  and  that  he  has  no  personal  interest "  in 
the  bill ;  "  and  that  he  will  never  vote  on  any  question  which  may 
arise,  A\dthout  having  duly  heard  and  attended  to  the  evidence  re- 
lating thereto."  No  committee  can  proceed  to  business  until  this 
declaration  has  been  made  and  signed  by  each  of  the  members ; 
and  if  any  member  neglects  to  sign  and  return  it  in  due  time,  or 
does  not  send  a  sufficient  excuse,  the  committee  of  selection  report 
his  name  to  the  house,  and  he  will  be  ordered  to  attend  the  com- 
mittee on  the  bill.     K  a  member,  who  has  signed  this  declaration, 

1  May,  623.  *  May,  523. 

2  May,  524. 


Chap.  IV.]  commitment  of  private  bill.  951 

should  subsequently  discover  Ihat  he  has  a  direct  pecuniary  interest 
in  a  bill,  or  in  a  company  who  are  petitioners  against  a  bill,  he 
states  the  fact,  and  upon  the  motion  of  the  chairman,  he  will  be 
discharged  by  the  house  from  further  attendance  on  the  comrait- 
tee.i 

2453.  If  the  excuse  of  a  member  is  not  deemed  satisfactory  by 
the  committee,  they  require  him  to  serve;  in  which  case,  his  attend- 
ance becomes  obhgatory,  and,  if  necessary,  will  be  enforced  by  the 
house.  At  any  time  before  the  meeting  of  a  committee  on  a  bill, 
the  committee  of  selection  may  substitute  one  mem])er  for  another, 
whom  they  shall  deem  it  pro))er  to  excuse.  But  after  the  commit- 
tee has  met,  members  can  only  be  discharged  from  attendance,  and 
other  meml.ers  added  to  the  committee,  by  order  of  the  house.- 

2454.  All  questions  before  committees  on  private  bills  are  de- 
cided by  the  majority  of  voices,  including  the  voice  of  the  chair- 
man ;  and,  whenever  the  voices  are  equal,  the  chairman  has  a 
second  or  casting  vote.  But,  in  applying  this  rule,  none  but  select- 
ed members  are  entitled  to  vote ;  members  added  in  respect  of  local 
representation,  being  only  entitled  to  attend  and  participate  in  the 
proceedings  of  the  committee,  without  voting.  If  the  chairman  is 
absent  at  any  time,  the  member  next  in  rotation  on  the  list  of  mem- 
bers, not  locally  or  otherwise  interested,  who  is  present,  acts  as 
chairman.'^ 

2455.  An  interval  of 'fourteen  days  is  required  to  elapse  between 
the  second  reading  of  every  private  bill,  and  the  first  sitting  of  the 
committee,  except  in  the  case  of  divorce  and  some  o:her  bills,  in 
reference  to  which  the  interval  is  less.  Subject  to  this  general  reg- 
ulation, the  committee  of  selection  fixes  the  time  for  holding  the 
first  sitting  of  the  committee  on  every  private  bill;  which,  however, 
is  not  to  be  appointed,  until  the  chairman  of  the  committee  of  ways 
and  means  has  certified  that  the  bill  is  so  far  approved  of,  as  to  be 
ready  for  the  consideration  of  the  committee.'^ 

2456.  Before  the  sitting  of  committees  on  private  bills,  the 
agents  of  the  promoters  are  requested  to  lay  copies  of  them  l>efore 
the  chairman  of  the  ways  and  means,  whose  duty  it  is,  with  the 
assistance  of  the  speaker's  counsel,  to  examine  all  private  bills, 
whether  opposed  or  unopposed,  and  to  caU  the   attention  of  the 

.house,  and,  also,  if  he  thinks  fit,  of  the  chairman  of  the  committee, 
on  every  opposed  private  bill,  to  all  points  which  may  appear  to 

»  ^ray,  524,  529,  530.  '  M;iy,  523. 

«  May,  524,  525.  *  Muy,  525,  629. 


952  '  LEGISLATIVE  ASSEMBLIES.  [PaRT   VII  I. 

him  to  require  it ;  and,  in  the  case  of  unopposed  bills,  he  is  also  to 
report  any  special  ckcumstances.  During  this  interval,  amend- 
ments are  suggested  or  required  by  the  authorities  in  both  houses, 
which  are  agreed  to  at  once  by  the  promoters,  or  after  discussion, 
ai-e  insisted  upon,  varied,  modified,  or  dispensed  with.  Li  the 
mean  time,  also,  the  promoters  endeavor,  by  proposing  amendments 
of  their  own,  to  concUiate  parties  who  are  interested,  and  to  avert 
opposition.  They  are,  besides,  frequently  in  communication  with 
pubUc  boards  or  government  departments,  by  whom  amendments 
are  sometimes  proposed ;  and  who,  again,  are  in  communication 
with  the  chau-man  of  the  ways  and  means,  or  with  the  chairman 
of  the  lords'  committees.^ 

2457.  When  the  amendments  consequent  upon  these  various 
proceedings  have  been  introduced,  the  printed  bill,  with  all  the  pro- 
posed amendments  and  clauses  inserted,  in  manuscript,  is  in  a  con- 
dition to  be  submitted'to  the  committee.  But  before  the  meeting 
of  the  committee,  at  least  one  clear  day,  the  agent  of  the  prom.oters 
is  requhed  to  deposit  in  the  private  bill  office  a  filled  up  copy  of  the 
bill  signed  by  himself,  as  proposed  to  be  submitted  to  the  commit- 
tee. A  similar  copy  is  also  required  to  be  laid  before  the  chakman 
of  ways  and  means,  three  clear  days  before  the  meeting  of  the 
committee.^  . 

2458.  If,  at  the  time  appointed  for  the  sitting  of  the  committee, 
three  of  the  members  not  interested  are  present,  the  committee  may 
proceed,  but  not  with  a  less  number,  without  the  special  leave  of 
the  house ;  and  so  soon  after  the  expiration  of  ten  minutes  from 
the  time  appointed  for  the  first  sitting  of  a  committee  on  an  op- 
posed bill,  (not  being  a  railv^^ay  bill,)  or  three  at  least  of  such  mem- 
bers are  present,  the  chairman  proceeds  to  take  the  chair.  But  no 
member  of  a  railway  committee,  nor  any  of  the  five  members,  not 
locally  or  otherwise  interested,  of  the  committee  on  any  other  pri- 
vate bill,  may  absent  himself,  except  in  case  of  sickness,  or  by  order 
of  the  house.^ 

2459.  If,  at  any  time,  a  quorum  of  three  should  not  be  present, 
the  chairman  suspends  the  proceedings,  and  if,  at  the  expiration  of 
an  hour,  there  should  still  be  less  than  three  members,  the  commit- 
tee is  adjourned  to  the  next  day  on  which  the  house  sits.  Members 
absenting  themselves  are  reported  to  the  house,  at  its  next  sitting, 
when  they  are  either  directed  to  attend  at  the  next  sitting  of  the 
committee,  or,  if  their  absence  has  been  occasioned  by  sickness. 

1  May,  526,  527.  "  May,  528,  629.  «  May,  530. 


Chap.  IV.]  commitment  of  private  bill.  953 

domestic  aflliction,  or  other  sufficient  cause,  they  are  excused  from 
further  attendance.  If,  after  a  committee  has  been  formed,  a  quo- 
rum of  members  cannot  attend,  the  chairman  reports  tlie  circum- 
stance to  the  house,  when  the  members  still  remaining,  will  be 
enabled  to  proceed,  or  such  other  orders  will  be  made  as  the  house 
may  deem  necessary.^ 

24G0.  Petitions  in  favor  of,  or  against,  private  bills,  are  presented 
to  the  house,  not  in  the  usual  way,  but  by  being  deposited  in  the 
private  bill  office,  by  a  member,  party,  or  agent;  and  every  petilion, 
which  has  been  thus  deposited  not  later  than  seven  clear  days  after 
the  second  reading,  stands  referred  to  the  committee  on  the  bill, 
without  any  distinct  reference  from  the  house ;  and,  subject  to  the 
rules  and  orders  of  the  house,  petitioners  who  have  prayed  to  be 
heard  by  themselves,  their  counsel,  or  agents,  are  to  be  heard  upon 
their  petition  accordingly,  if  they  think  fit;  and  counsel  heard  in 
favor  of  the  bill  against  such  petition.^ 

2461.  Petitioners  will  not  be  heard  before  the  committee,  unless 
their  petition  is  prepared  and  signed  in  strict  conformity  with  the 
rules  and  orders  of  the  house,  and  has  been  deposited  within  the 
time  fimited,  except  in  cases  in  which  the  petitioners  complain  of 
some  matter  which  may  have  arisen  in  committee,  or  which  may 
be  contained  in  the  amendments  as  proposed  in  the  filled  up  bill.^ 
If  a  petition  is  presented  after  the  time  limited,  the  only  mode  by 
\\  hich  the  petitioners  can  obtain  a  hearing,  is  by  presenting  a  peti- 
tion, praying  that  the  standing  orders  may  be  dispensed  with  in 
their  case,  and  that  they  may  be  heard  by  the  committee.  The 
petition  will  be  referred  to  the  standing  orders  committee ;  and  if 
the  petitioners  are  able  to  show  any  special  circumstances,  which 
entitle  them  to  indulgence,  and  particularly  that  they  have  not 
been  guilty  of  negligence,  the  standing  orders  will  be  dispensed 
wilh.^ 

2462.  If  a  petition  does  not  distinctly  specify  the  grounds,  on 
which  the  petitioners  object  to  the  provisions,  or  any  of  them,  of  a 
bill,  it  will  not  be  considered.  The  petitioners  can  only  be  heard 
on  the  grounds  so  stated ;  and  if  not  specified  with  sufficient  accu- 
racy, the  committee  may  direct  a  more  specific  statement  to  be 
given  in  writing,  but  limited  to  the  grounds  of  objection  which  had 
been  insufficiently  stated/^ 

2463.  If  no  parties  appear  on  the  petitions  against  an  opposed 

6  May,  532. 


»  May,  530. 

s  May,  531,  532. 

3  May,  531. 

*  Mav,  532. 

80* 

954  LEGISLATIVE   ASSEMBLIES.  [PaRT  VIIL 

bill,  or  having  appeared,  withdraw  theu'  opposition  before  the  evi- 
dence of  the  promoters  is  commenced,  the  committee  is  required  to 
refer  back  the  biU  to  the  committee  of  selection,  who  deal  with  it 
as  an  unopposed  bill ;  and,  in  the  case  of  a  railway  bill,  the  com- 
mittee may  refer  the  biU  back  to  the  committee  of  selection,  under 
the  same  circumstances,  if  they  think  fit,  but  otherwise  may  con- 
sider the  bill,  though  unopposed.  And,  on  the  other  hand,  if  the 
chamnan  of  the  ways  and  means  reports  that  any  unopposed  bill 
should,  in  his  opinion,  be  treated  as  opposed,  it  is  again  referred  to 
the  committee  of  selection,  and  dealt  with  accordingly.^ 

2464.  It  is  the  duty  of  every  committee  to  take  care  that  the 
several  provisions,  required  by  the  standing  orders  of  the  house  to 
be  inserted  in  private  biUs,  are  included  in  them,  wherever  they  are 
applicable.  Some  of  these  provisions  relate  to  private  bills  gener- 
ally, and  others  to  particular  classes  of  bills.  Of  the  former,  are 
clauses  for  compelling  the  payment  of  subscriptions ;  for  the  safe 
custody  of  moneys,  and  the  auditing  of  accounts,  in  bills  authoriz- 
ing the  levy  of  fees,  toUs,  or  other  rates  of  charge ;  and  for  defining 
the  level  of  roads,  and  otherwise  protecting  them,  when  altered  by 
the  construction  of  any  public  work.^ 

2465.  The  functions  and  proceedings  of  committees  on  unop- 
posed bills  are  somewhat  different  from  those  of  other  committees. 
The  chairman  of  the  ways  and  means,  and  one  of  the  two  other 
members  of  the  committee,  are  a  quorum  ;  and,  unless  they  are  of 
opinion  that  a  bill  referred  to  them  should  be  treated  as  an  opposed 
bill,  they  proceed  to  consider  the  preamble,  and  all  the  provisions 
of  the  biU,  and  take  care  that  they  are  conformable  to  the  standing 
orders.  The  chief  responsibility  is  imposed  upon  the  chairman, 
who,  being  an  officer  of  the  house,  as  weU  as  a  member,  is  in- 
trusted, as  akeady  stated,  with  the  special  duty  of  examining,  as- 
sisted by  the  speaker's  counsel,  every  private  biU,  whether  opposed 
or  unopposed.  For  this  purpose,  a  copy  of  the  bUl,  signed  by  the 
agent,  as  proposed  to  be  submitted  to  the  committee,  has  been  al- 
ready laid  before  the  chairman  and  counsel ;  and,  at  the  first  meet- 
ing of  the  committee,  is  ordered  to  be  laid  before  each  member.^ 

2466.  There  being  no  opponents  of  the  bill  before  the  commit- 
tee, the  promoters  have  only  to  prove  the  preamble,  and  satisfy  the 
committee  of  the  propriety  of  the  several  provisions ;  that  aU  the 
clauses  required  by  the  standing  orders  are  inserted  in  the  bill ;  and 

1  May,  533.  8  May,  534. 

2  May,  534. 


Chap.  IV.]  commitment  of  private  bill.  955 

that  such  standing  orders  as  must  be  proved  before  the  committee 
have  been  complied  with.  But  if  extensive  alterations  are  pro- 
posed to  be  made  in  the  original  bill  annexed  to  the  petition,  it  is 
liable  to  be  withdrawn,  by  order  of  the  house,  on  the  report  of  the 
chairman.  If  it  should  appear  that  tiie  bill  ought  to  be  treated  as 
an  opposed  bill,  the  chairman  reports  his  opinion  to  the  house,  and 
the  bill  is  thereupon  referred  to  the  committee  of  selection,  who 
deal  with  it  accordingly.^ 

2467.  There  are  various  orders  of  the  house,  which  are  binding 
ujDon  all  committees  on  private  bills.  Thus  the  names  of  the  mem- 
bers attending  each  committee,  are  to  be  entered  by  the  committee 
clerk  in  the  minutes  ;  and  when  a  division  takes  place,  the  clerk 
takes  down  the  names  of  the  members,  distinguishing  on  which 
side  of  the  question  they  respectively  vote ;  and  such  lists  are  to  be 
given  in,  with  the  report,  to  the  house.'-^ 

2468.  So,  too,  the  committee  is  precluded  from  examining  into 
the  compliance  with  such  standing  orders  as  are  directed  to  be 
proved  before  the  examiners  of  petitions  for  private  bills,  unless 
they  have  received  an  instruction  from  the  house  to  that  effect. 
Such  an  order  is  only  given,  when  the  house,  on  the  report  of  the 
standing  orders'  committee,  allows  parties  to  proceed  with  their  biU, 
on  complying  with  certain  standing  orders  which  they  had  pre- 
viously neglected.  In  such  cases,  the  committee  on  the  bill  in- 
quires \\hether  the  orders  have  been  complied  with,  instead  of 
referring  that  inquiry  to  the  examiner  of  petitions,  but  when  any 
special  inquiry,  in  reference  to  the  standing  orders,  is  necessary,  the 
matter  is  referred  to  the  examiner  instead  of  the  committee ;  and 
the  examiner's  certificate  is  produced  before  the  committee.^ 

2469.  Among  the  orders,  which  relate  only  to  particular  classes  or 
descriptions  of  biUs,  those  which  relate  to  railway  bills  have  been 
the  most  important  in  modern  times;  To  these,  the  attention  of 
the  committee  on  every  railway  bill,  and  of  the  promoters  and  op- 
ponents of  such  bills,  should  be  directed.  By  these  orders,  it  is,  in 
the  first  place,  required,  that  particular  matters  should  come  under 
the  investigation,  and  be  reported  upon,  by  the  committee,  as,  for 
example,  as  to  the  sufficiency  of  the  subscribers,  the  proposed  capi- 
tal, the  amount  of  shares  subscribed  for,  and  deposits  paid,  the  en- 
gineering particulars  of  the  line,  the  names  of  the  engineers  exam- 
ined as  witnesses  for  and  agrainst  the  bdl,  the  main  allegations  of 


»  Slav,  534.  »  May,  535,  536. 

«  May,  535. 


956  LEGISLATIVE   ASSEMBLIES.  [PaRT    VII  L 

every  petition  in  opposition  to  the  preamble  of  the  bill,  or  any  of 
its  clauses,  and,  generally,  as  to  the  fitness,  in  an  engineering  point 
of  view,  of  the  projected  line  of  railway ;  secondly/,  certain  fixed 
principles  of  legislation  are  laid  down,  from  which  the  committee, 
except  in  special  cases,  will  not  be  justified  in  departing,  relating, 
for  example,  to  the  authority  of  the  company  to  raise  money  by 
loan  or  mortgage,  to  the  level  of  any  turnpike  or  other  road  which 
is  proposed  to  be  altered  in  making  a  railway,  to  the  authority  to 
construct  a  dock,  pier,  harbor,  or  feiTy,  to  the  fixing  of  the  tolls  and 
rates  of  charge  for  the  conveyance  of  goods  and  passengers ;  and, 
thirdly,  particular  clauses  are  required  to  be  inserted,  as,  for  exam- 
ple, relating  to  preference  to  be  granted  to  any  shares  or  stock  in 
the  payment  of  interest  or  dividends,  prohibiting  the  payment  of 
capital  for  the  construction  of  another  railway,  providing  that  the 
railway  shall  not  be  exempted  from  the  provisions  of  any  general 
acts,  or  from  future  revision  by  parliament  of  the  maximum  rates 
of  fares  and  charges  previously  authorized.^ 

2470.  The  committee  on  a  bill  for  confirming  letters  patent,  are 
to  see,  in  compHance  with  the  standing  orders,  that  there  is  a  true 
copy  of  the  letters  patent  annexed  to  the  bill.  There  are  several 
standing  orders,  relating  specially  to  bills  for  the  inclosure  and 
drainage  of  lands,  compfiance  with  which  is  to  be  examined  into 
and  enforced  by  the  committees,  such  as  the  proof  of  notices,  and 
the  consent  of  the  lord  of  the  manor,  or  of  the  owners  or  occupiers 
of  the  lands,  and  the  provision  in  inclosure  bills  for  leaving  a  space 
open  for  exercise  and  recreation.^ 

2471.  If  the  committee  on  any  private  bill  should  report  it  to  the 
house,  without  proper  provisions  made  in  it,  in  conformity  with  the 
standing  orders,  of  the  description  above  alluded  to,  it  is  1he  duty 
of  the  chairman  of  the  ways  and  means  to  inform  the  house  of  the 
fact,  or  to  signify  it  in  WTiting  to  the  speaker,  on  or  before  the  con- 
sideration of  the  bill ;  upon  which  the  house  will  make  such  orders 
as  it  shall  think  fit.^ 


SECTiGif  II.     Of  the   Proceedings    of    Committees   on   opposed 

Bills. 

2472.    The   proceedings   of  committees   upon  opposed    private 
bills,   which   are   regulated    partly   by  the    usage  of    parliament, 

1  May,  536,  537,  538,  539,  540.  «  May,  541. 

2  Muj-,  540,  54L 


Chap.  IV.]  commitment  op  private  bill.  957 

and  partly  by  standing  orders  of  the  house,  are  ordinarily  the 
same  as  those  of  other  select  committees,  which  have  been  ex- 
plained elsewhere.^  The  questions  for  the.  consideration  of  the 
committee  are  moved  in  the  same  manner  as  in  the  house,  and  are 
put  by  the  chairman,  and  determined  by  the  vote  of  a  majority  as 
already  mentioned. 

2473.  When  counsel  are  addressing  the  committee,  or  while  wit- 
nesses are  under  examination,  the  committee  room  is  an  open 
court ;  but  when  the  committee  is  about  to  deliberate,  all  persons 
present,  counsel,  agents,  witnesses,  and  strangers,  are  ordered  to 
withdraw  and  the  committee  sits  with  closed  doors.  When  it 
has  decided  the  question,  the  doors  are  again  opened,  and  the 
chairman  acquaints  the  parties,  if  the  matter  concerns  them,  with 
the  determination  of  the  committee. 

2474.  The  first  proceeding  on  an  opposed  bill,  is  to  call  in  all 
the  parties.  The  counsel  in  support  of  the  bill  appear  before  the 
committee ;  the  petitions  against  the  bUl,  in  which  the  petitioners 
pray  to  be  heard,  are  read  by  the  committee  clerk  ;  and  the  couuisel 
or  agents  in  support  of  them  present  themselves.^  K  no  parties, 
counsel,  or  agents,  appear  when  a  petition  is  read,  the  opposition 
on  the  part  of  the  petitioners  is  held  to  be  abandoned ;  and,  unless 
they  state  their  intention  to  oppose  the  bill,  before  the  case  ie 
opened,  they  are  not  afterwards  entitled  to  be  heard,  without  specia.  ■ 
leave  from  the  committee. 

2475.  When  the  parties  are  before  the  committee,  the  senior 
counsel  for  the  promoters  of  the  bill  opens  their  case,  commencing 
with  the  preamble,  which  in  the  case  of  a  private  bill,  unlike  tho 
practice  in  regard  to  public  bills,  is  first  considered.  If  the  pre- 
amble is  opposed,  the  counsel  addresses  himself  more  particularly 
upon  the  general  expediency  of  the  biU,  and  then  calls  witnesses  to 
prove  the  truth  of  the  allegations  contained  in  the  preamble.  The 
witnesses  may  be  cross-examined  on  behalf  of  petitioners  against  the 
preamble,  but  not  as  to  the  general  case,  on  behalf  of  parties  object- 
ing only  to  certain  provisions  in  the  bill.  When  all  the  witnesses 
for  the  preamble  have  been  examined,  the  case  of  the  promoters  is 
closed,  unless  their  counsel  has  waived  the  right  to  an  opening 
speech.'^ 

1  See  Part  VII.  Sec.  2.  apply  to  all  committees,  Hans.  (3),  Vol.  62,  p. 

«  A  standing  order  of  January  3d,  1701,  di-  311;  but  by  its  terms,  it  would  appear  to  be 

reeled  the  committee  of  privile^^e  and  elec-  confined  to  a  single   committee   not  now  in 

tion?  to  "  admit  only  two  counsels  of  a  side,  existence;  and,  in  practice,  it  is  not  observed. 

In  any  cause  before  them,"  (13  Comm.  Jour.  '  May,  542. 
648);  and  this  order  has  been  supposed  to 


9o8  LEGISLATIVE   ASSEMBLIES.  [PaRT   VIII 

2476.  All  the  petitions  against  a  bill,  which  have  been  deposited 
within  the  time  limited,  stand  referred  to  the  committee  by  the 
general  order  of  the  house ;  but  no  petitioners  are  entitled  to  be 
heard,  unless  they  have  prnyed  to  be  heard  b)?-  themselves,  their 
counsel  or  agents,  nor  unless  they  have  a  locvs  standi,  according  to 
the  rules  and  usages  of  parliament ;  nor  unless  their  petition,  and 
the  proceedings  thereupon,  are  otherwise  in  conformity  with  the 
rules  and  orders  of  the  house.^ 

2477.  Some  petitions  pray  to  be  heard  against  the  preamble  and 
clauses  of  the  bill ;  some  against  certain  clauses  only ;  and  others 
pray  for  the  insertion  of  protective  clauses,  or  for  composition  for 
damage,  which  will  arise  under  the  bill.  Unless  the  petitioners 
pray  to  be  heard  against  the  preamble,  they  will  not  be  entitled  to 
be  heard,  nor  to  examine  any  of  the  promoters'  witnesses,  upon  the 
general  case,  nor  otherwise  to  appear  in  the  proceedings  of  the 
committee,  until  the  preamble  has  been  disposed  of.  Nor  will  a 
general  prayer  against  the  preamble  entitle  a  petitioner  to  be  heard 
against  it,  if  his  interest  is  merely  affected  by  certain  clauses  of  the 
bill.  The  proper  time  for  urging  objections  to  parties  being  heard 
against  the  preamble,  is  when  their  counsel  or  agent  first  rises  to 
put  a  question  to  a  witness,  or  to  address  any  observations  to  the 
committee.     This  is  also  the  proper  time  for  objecting,  that  peti- 

■  tioners  are  not  entitled  to  be  heard  on  any  other  grounds.'"' 

2478.  Parties  are  said  to  have  no  loais  standi  before  a  committee, 
when  their  property  or  interests  are  not  directly  and  specially 
affected  by  the  bill,  or  when,  for  other  reasons,  they  are  precluded 
from  opposing  it.  The  committee  determine,  according  to  the  cir- 
cumstances of  each  case,  whether  the  petitioners  have  such  an  inter- 
est as  to  entitle  them  to  be  heard ;  the  circumstances  varying,  of 
course,  according  to  the  special  relations  of  the  petitioners,  and  the 
nature  and  objects  of  the  bill.^ 

2479.  It  has  been  held  generally,  as  a  parliamentary  rule,  that 
competition  does  not  confer  a  locus  standi;  but,  of  late  years,  this 
rule  has  been  considerably  relaxed,  and  numerous  exceplions  have, 
in  practice,  been  admitted.  The  proprietors  of  an  exisling  railway 
have  no  right  to  be  heard,  according  to  the  rule,  upon  their  petition 
against  another  line,  on  the  ground,  that  the  profits  of  their  under- 
taking will  be  diminished.  But  if  it  is  proposed  to  take  the  least 
portion  of  the  land  l^elonging  to  the  company,  they  then  have  a 

J  May,  543.  «  May,  544. 

«  May,  54  i. 


Chap.  IV.]  commitment  of  private  bill.  959 

locus  standi  before  the  committee.  The  result  of  ibis  application 
of  the  nile  has  been,  that  most  of  the  great  parliamentary  contests 
between  railway  companies  have  been  conducted  in  the  names  of 
land-owners;  each  company  having  obtained  the  signatures  of 
land-owners  to  petitions  against  the  scheme  of  the  other,  have  in- 
structed counsel  to  appear  upon  them,  and  have  defrayed  all  the 
costs  of  the  nominal  petitioners.  The  rule  has  been  since  relaxed 
in  favor  of  competing  railway  schemes  referred  to  the  same  com- 
mittee, and  also  in  favor  of  the  proprietors  of  canals  or  navigations. 
In  recent  cases,  too,  the  rule  has  not  been  enforced,  in  its  applica- 
tion to  the  right  of  an  existing  gas  or  water  company  to  oppose 
the  establishment  of  a  new  company  proposing  to  supply  the  same 
district.^ 

2480.  Another  ground  of  objection  to  the  locus  standi  of  peti- 
tioners is,  that  they  are  shareholders  or  members  of  some  corporate 
body  by  whom  the  bill  is  promoted,  and  that  being  legally  bound 
by  the  acts  of  the  majority,  they  are  precluded  from  being  heard  as 
individual  petitioners.  This  rule  has,  however,  been  departed  from, 
in  the  ca?e  of  dissentient  shareholders,  as,  for  example,  preference 
shareholders,  who  have  some  interest  different  from  that  of  the  gen- 
eral body.     In  the  house  of  lords,  a  different  rule  prevails.^ 

2181.  Objections  may  also  be  taken,  that  a  petition  is  informal, 
according  to  the  rules  and  orders  of  the  house  applicable  to  peti- 
tions, generally,  or  as  specially  applicable  to  petitions  against  pri- 
vate bills ;  as,  for  example,  where  the  seal  attached  to  the  petition 
of  a  company  is  not  the  corporate  seal ;  and,  in  such  case,  when  the 
ground  of  objection  is  proved,  all  the  evidence  in  support  of  the 
petition  is  expunged.'^ 

2482.  It  may  also  be  objected,  that  petitions  do  not  distinctly 
specify  the  grounds  on  which  the  petitioners  object  to  the  bill.  The 
committee  may,  however,  direct  a  more  specific  statement  of  ob- 
jections to  be  given  in,  limited  to  the  gi'ounds  of  objection  which 
had  been  inaccurately  stated.  But  if  the  committee  determines, 
that  the  grounds  so  stated  do  not  amount  to  an  objection  to  the 
preamble  to  the  bill,  no  further  specification  can  avail  the  peti- 
tioners."* 

2483.  When  counsel  are  allowed  to  be  heard  against  the  pre- 
amble, one  of  them  either  opens  the  case  of  the  petitioners,  or  re- 
serves his  speech  until  after  the  evidence.     Witnesses  may  then  be 

1  May,  544.  '  May.  546. 

»  May,  545,  546.  *  May,  546 


960  LEGISLATIVE   ASSEMBLIES.  [Pi^RT  VIII 

called  and  examined,  in  support  of  the  allegations  in  the  petition, 
cross-examined  by  the  counsel  for  the  bill,  and  reexamined  by  the 
counsel  for  the  petitioners.  When  the  evidence  against  the  pre- 
amble is  concluded,  the  case  of  the  petitioners  is  closed,  unless  an 
opening  speech  has  been  waived ;  and  the  senior  counsel  for  the 
bill  replies  on  the  whole  case.  If  the  petitioners  do  not  examine 
witnesses,  the  counsel  for  the  bill  has  no  right  to  a  reply ;  but  in 
some  special  cases,  where  new  matter  has  been  inti'oduced  on  the 
other  side,  (as,  for  example,  an  act  of  parliament  or  precedents,)  a 
reply,  strictly  confined  to  such  new  matter,  has  been  allowed. 
When  there  are  numerous  parties  appearing  on  separate  interests, 
the  committee  makes  such  arrangements,  as  they  think  fit,  for  hear- 
ing them.i 

2484.  When  the  arguments  and  evidence  upon  the  preamble 
have  been  heard,  the  committee  room  is  cleared,  and  a  question  is 
put,  "  That  the  preamble  has  been  proved,"  which  is  resolved  in 
the  affirmative  or  negative,  as  the  case  may  be.^ 

2485.  If  the  question  is  affirmed,  the  committee  calls  in  the  par- 
ties, and  go  through  the  bill  clause  by  clause,  and  fill  up  the  blanks  ; 
and  when  petitions  have  been  presented  against  a  clause,  or  pro- 
posing amendments,  the  parties  are  heard  in  support  of  their  ob- 
jections or  amendments,  as  the  clauses  to  which  they  relate  come 
before  the  committee  ;  but  clauses  may  be  postponed  and  consider- 
ed at  a  later  period  in  the  proceedings,  if  the  committee  thinks  fit.^ 

2486.  When  all  the  clauses  of  a  bill  have  been  agreed  upon, 
new  clauses  may  be  offered  either  by  members  of  the  committee  or 
by  the  parties.  It  must  be  borne  in  mind,  however,  that  the  com- 
mittee may  not  admit  clauses  or  amendments  which  are  not  within 
the  order  of  leave ;  or  which  are  not  authorized  by  a  previous  com- 
pliance with  the  standing  orders  applicable  to  them,  unless  the  par- 
ties have  received  permission  from  the  house  to  introduce  certain 
additional  provisions  in  compfiance  with  petitions  therefor.* 

2487.  If  the  proof  of  the  preamble  is  negatived,  the  committee 
reports  at  once  to  the  house,  "  That  the  preamble  has  not  been 
proved  to  then-  satisfaction."  This  is  the  only  report  requured  to  be 
made ;  and  although  the  house  had  affirmed  the  principle  of  the 
bill  on  the  second  reading,  no  reasons  are  given  by  the  committee 
for  thus  practically  reversing  the  judgment  of  the  house.^  In  a 
special  case,  however,  the  committee  on  a  private  bill  was  ordered 

1  May,  547.  '  May,  548.  *  May,  548. 

•  May.  547.  *  May.  548. 


Chap.  IV.]  commitment  of  private  bill.  961 

by  the  house  to  reassemble,  "  for  the  purpose  of  reporting  specially 
the  preamble,  and  the  evidence  and  reasons  in  detail,  on  which 
they  came  to  the  resolution  that  the  preamble  had  not  been 
proved."  ^ 

2488.  No  alterations  were  formerly  admissible  in  the  preamble 
of  a  private  bill ;  but  since  1843,  they  have  been  allowed ;  subject 
to  the  same  restriction  as  in  the  case  of  other  amendments',  that 
nothing  shall  be  introduced  inconsistent  with  the  order  of  leave,  or 
with  the  standing  orders  applicable  to  the  bill.  Such  amendments 
are,  however,  to  be  specially  reported.'^ 


Section  III.    Of  the  Duties  of  the  Committee  as  to  Reporting 

their  Proceedings. 

2489.  The  duties  of  the  chairman  and  committee  in  recording 
the  proceedings,  and  reporting  them  to  the  house,  as  explained  in 
the  standing  orders,  require,  that  every  plan  and  book  of  reference 
produced  in  evidence  shall  be  signed  by  the  chairman  and  deposited 
in  the  private  bill  ofllce ;  that  the  chairman  shall  sign  a  printed 
copy  of  the  bill  (called  the  committee  bill)  on  wliich  the  amend- 
ments are  fairly  written;  that  the  chairman  shall  report  that  the 
allegations  of  the  bill  have  been  examined,  and  whether  the  parties 
concerned  (whose  consent  is  required)  have  given  their  consent  to 
the  satisfaction  of  the  committee ;  that  the  committee  shall  report 
the  bill  to  the  house,  whether  they  have  or  have  not  agreed  to  the 
preamble,  or  gone  through  the  several  clauses  or  any  of  them,  that 
M'hen  any  alteration  shall  have  been  made  in  the  preamble,  such 
alteration,  together  with  the  ground  of  making  it,  shall  be  specially 
stated  in  the  report ;  and  that  the  minutes  of  the  committee  be 
brought  up  and  laid  on  the  table  with  the  report  of  the  bill.^ 

2490.  If  matters  should  arise  in  the  committee,  apart  from  the 
consideration  of  the  bill  referred  to  them,  which  they  desire  to  re- 
port to  the  house,  the  chairman,  by  direction  of  the  committee, 
should  move  the  house  that  leave  be  given  to  the  committee  to 
make  a  special  report.  The  house  may  also  instruct  the  committee 
to  make  a  special  report.^ 

1  Coram.  Jour.  XCL  306.  lines  of  railway  to  Brighton,  had  been  referred 

*  May,  548.  to  the  same  committee  :  when  an  unprece- 
«  May,  549.  dented  contest  arose  among  the  promoters  of 

*  '  A  case  of  a  very  nmisiial  character  oc-  the  rival  lines,  and  at  length  it  was  appre- 
currcd  in  1837,  which  deserves  particular  hended  that  the  preamble  of  each  bill  would 
notice.    The  bills  for  making  four  distinct      be  negatived,  in  succession,  by  the  combinu- 

81 


962  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIIL 

2491.  Committees  on  private  bills  have  no  power  conferred  upon 
them  of  sending  for  persons,  papers,  and  records.  The  parties  are 
generally  able  to  secm-e  the  attendance  of  their  witnesses,  without 
applying  to  the  committee ;  but  when  they  desire  to  compel  the 
attendance  of  an  adverse  or  unwilling  witness,  they  should  apply 
to  the  committee,  who,  when  satisfied  that  the  party  has  used  due 
diligence,  and  that  the  witness  is  material  to  the  inquiry,  direct  a 
special  report  to  be  made  to  the  house ;  upon  which  an  order  is 
made  by  the  house,  to  oblige  the  witness  to  attend  and  give  evi- 
dence before  the  committee. 

2492.  Besides  making  the  prescribed  form  of  report,  or  special 
reports  in  particular  cases,  committees  have  had  leave  given  them 
to  report  the  minutes  of  evidence,  which  have  also  been  ordered  to 
be  printed,  at  the  expense  of  the  parties,  if  they  think  fit,  and  even 
in  special  cases,  at  the  expense  of  the  house ;  or  have  been  referred 
to  the  committee  on  another  bill.^ 

2493.  If  parties  acquaint  the  committee,  that  they  do  not  desire 
to  proceed  further  with  the  bills,  that  fact  is  reported  to  the  house, 
and  the  biU  will  be  ordered  to  be  withdrawn.  On  one  occasion,  a 
report  was  made,  that  from  the  protracted  examination  of  wit- 
nesses, the  promoters  desired  leave  to  withdraw  their  biU,  and  that 
the  committee  had  instructed  their  chairman  to  move  for  leave  to 
lay  the  minutes  of  evidence  on  the  table  of  the  house.^ 

2494.  It  is  the  duty  of  every  committee  to  report  to  the  house 
the  bill  that  has  been  committed  to  them,  and  not  by  long  adjourn- 
ments, or  by  an  informal  discontinuance  of  their  sittings,  to  with- 
hold from  the  house  the  result  of  their  proceedings.  If  any  at- 
tempt of  this  natm-e  is  made  to  defeat  a  biU,  the  house  wiU  inter- 
fere to  prevent  it,  by  directing  the  committee  to  meet  immediately, 
and  proceed  with  the  bill  referred  to  them. 

2495.  Whenever  a  committee  adjourns,  the  committee  clerk  is 
required  to  give  notice  in  writing,  to  the  clerks  in  the  private  biU 
office,  of  the  day  and  hour  to  which  the  committee  is  adjourned.'^ 

tion  of  three  out  of  the  four  parties  against  ble  to  decide  upon  the  merits  of  the  compet- 

each  of  the  lines  in  wliich  the  three  were  not  ing  lines,  agreed  to  address  the  crown  to  refer 

interested,  and  on  which  the  committee  would  the  several  statements  of  engineering  particu- 

have  to   determine   separately.     This   result  lars  to  a  military  engineer.     lb.  417.     On  the 

was  prevented  by  an  instruction  to  the  com-  report  of  the  engineer  appointed,  in  answer 

mittee  'to  make  a  special  report  of  the  engi-  to    this    address,  the    house    instructed   the 

neering  particulars  of  each  of  the  lines,'  to  committee  to  hear  the  case  of  the  land-o%vn- 

enable  the  house  to  determine  which  to  send  ers  upon  the  direct  line.     lb.  519;  May,  549. 
back  for  the  purpose  of  having  the  land-own-         ^  May,  551. 
ers  heard  and  the  clauses  settled."     Comm.         ^  May,  531. 
Jour.   XCIL  356.      This   special   report  was         » jjay,  552. 
'  made  accordingly ;  but  the  house  being  una- 


ClUP.   v.]         REPORT   OF   COMMITTEE   ON  PRIVATE   BILL.  9G3 

2496.  If  a  committee  adjourns  without  naming  another  day  for 
resuming  its  sittings  ;  or  if  any  informality  in  the  notices  prevents 
the  committee  from  sitting;  or  if,  from  the  absence  of  a  qnoruin, 
the  committee  is  unable  to  proceed  to  business,  or  to  adjourn  to  a 
future  day  ;  it  has  no  power  of  reassembling,  without  an  order  from 
the  house ;  and  the  committee  is  said  to  be  revived,  when  this  inter- 
vention of  the  house  takes  i)lacc.  The  form  in  which  the  order  is 
usually  made  is,  "  that  the  committee  be  revived,  and  that  leave  be 
given  to  sit  and  proceed  on  a  certain  day."  To  avoid  an  irregu- 
larity in  the  adjournment,  care  should  be  taken  to  appoint  a  day 
for  the  next  meeting,  before  the  proceedings  of  the  committee  are 
interrupted  by  the  notice  of  the  sergeant-at-arms,  that  the  speaker 
is  at  prayers.^ 


CHAPTER     FIFTH. 

OF  THE  PxEPORT  OF  THE  COMMITTEE,  AND  PROCEEDINGS  THEREON; 
RECOMMITMENT;  THIRD  READING;  PASSING;  AMEND^MENTS  BE- 
TWEEN  THE   TWO   HOUSES. 

2497.  When  the  report  has  been  made  out  and  agreed  to  by  the 
committee,  the  committee  clerk  is  required  to  deliver  in  at  the  pri- 
vate bill  office,  a  printed  copy  of  the  bill,  with  the  ^^Titten  amend- 
ments made  by  the  committee ;  and  with  the  several  clauses  added 
by  the  committee,  regularly  marked  in  those  parts  of  the  bUl  in 
which  they  are  to  be  inserted.  In  strict  conformity  wiih  this  au- 
thenticated copy,  the  bill,  as  amended  by  the  committee,  is  required 
by  the  standing  orders  to  be  printed  at  the  expense  of  the  parties, 
unless  the  committee  report  that  the  amendments  are  merely  verbal 
or  literal.  When  printed,  they  must  be  delivered  to  the  door-keep- 
ers, three  clear  days  at  least  before  the  consideration  of  the  report; 
but  these  coi)ies  are  not  to  be  delivered  before  the  report  of  the  bill 
is  made  to  the  house.- 

2498.  In  some  cases,  the  alterations  made  by  the  committee  have 
been  so  numerous  and  imporiant,  as  almost  to  constitute  the  bill  a 
dilVerent  measure  from  that  originally  brought  before  the  house.  In 
Buch  cases,  the  house  has  sometimes  required  the  bill  to  be  ivith- 

1  May,  552.  «  May,  552. 


964  LEGISLATIVE    ASSEMBLIES.  [PaRT    VIIL 

drawn,  and  another  bill  presented,  which  has  been  referred  to  the 
examiners.  But  unless  the  case  is  one  of  great  in-egularity,  the* 
later  and  better  practice  has  been,  to  refer  the  bill,  as  amended,  "  to 
the  examiner,  to  inquire  whether  the  amendments  involve  any  in- 
fraction of  the  standing  orders."  If  the  examiner  reports,  that 
there  is  no  infraction  of  the  standing  orders,  the  bill  proceeds,  with- 
out further  interruption  ;  but  if  he  reports,  that  there  has  been  such 
an  infraction,  his  report,  together  with  the  bill,  will  be  referred  to 
the  standing  orders'  committee.^ 

2499.  The  committee  makes  its  report  to  the  house,  in  the  same 
manner  as  other  select  committees ;  and  the  proceedings  on  the 
report,  with  certain  exceptions,  which  will  be  briefly  stated,  are  sub- 
stantially the  same  as  in  other  cases.  .  When  the  report  is  first 
made,  it  is  ordered  to  lie  on  the  table,  together  wdth  the  bill,  (if  a 
railway  bill,  or  a  bill  amended  in  committee,)  and  is  not  taken  into 
consideration  until  a  future  day ;  but  if  not  amended  in  committee, 
the  bill  is  ordered  to  be  read  a  third  time.  The  bill  reported  to  the 
house  is  a  duplicate  copy  of  the  committee  bill,  including  all  the 
amendments  and  clauses  agreed  to  by  the  committee.  On  or  be- 
fore the  consideration  of  the  bill,  the  chairman  of  ways  and  means 
is  also  to  inform  the  house,  or  signify  in  writing  to  the  speaker, 
whether  the  bill  contains  the  several  provisions  required  by  the 
standing  orders  ;  and,  untd  he  has  done  so,  the  bill  will  not  be  con- 
sidered. One  clear  day's  notice,  in  writing,  must  also  be  given  by 
the  agent  for  the  bill,  to  the  clerks  in  the  private  bUl  office,  of  the 
day  proposed  for  the  report,  and  also  for  the  further  consideration 
of  the  report  when  laid  on  the  table. 

2500.  When  it  is  intended  to  bring  up  any  clause,  or  to  propose 
any  amendment  on  the  report,  or  on  the  consideration  of  the  report, 
or  on  the  third  reading  of  the  bill,  notice  must  be  given  in  the  pri- 
vate bill  office  one  clear  day  previously.  On  the  consideration  of 
the  report,  the  house  may  agree  or  disagree  to  the  amendments  of 
the  committee,  and  may  introduce  new  clauses  or  amendments  ; 
but  no  clause  or  amendment  may  then  be  offered,  or  on  the  third 
reading,  unless  the  chairman  of  ways  and  means  has  informed  the 
house,  or  signified  in  writing  to  the  speaker,  whether,  in  his  opin- 
ion, it  is  such  as  ought  (or  ought  not)  to  be  entertained  by  the 
house,  without  referring  it  to  the  standing  orders  committee,  and 
the  clause  or  amendment  is  to  be  printed  at  the  expense  of  the  par- 
ties ;  and  when  the  proposition  is  to  amend  a  clause,  it  is  to  be 

1  May,  553. 


Chap.  V.]        report  of  committee  on  private  bill.  965 

printed  in  full,  with  every  addition  or  substitution  in  dift'crent  type. 
and  the  omissions  therefrom  in  brackets  and  underlined.  And  on 
the  day  on  which  notice  is  given,  the  clause  or  amendment  is  to  be 
laid  before  the  chairman  of  the  ways  and  means  and  the  speaker's 
counsf'l.^ 

2501.  If  a  clause  or  amendment  is  referred  to  the  standing  orders 
committee,  there  can  be  no  further  proceeding  until  its  report  has 
been  brought  up.  When  the  clause  or  amendment  has  been  offered 
on  the  consideration  of  the  bill,  it  reports  whether  it  should  be 
adopted  by  the  house  or  not,  or  whether  the  bill  should  be  recom- 
mitted. If  ollered  on  the  third  reading,  it  merely  reports  whether  it 
ought  (or  ought  not)  to  be  adopted  by  the  house  at  that  stage ;  as 
it  is  then  too  late  to  recommit  the  bill.- 

2502.  When  bills  are  recommitted,  they  are  referred  to  the  for- 
mer committee ;  and  no  member  can  then  sit,  unless  he  shall  have 
been  duly  qualified  to  serve  upon  the  original  committee  on  the 
bill ;  or  be  added  by  the  house.  The  committee  cannot  sit,  unless 
the  agent  has  given  three  clear  days  notice,  in  writing,  at  the  pri- 
vate bill  office,  of  the  day  and  hour  appointed  for  their  meeting; 
and,  a  filled  up  copy  of  the  bill,  as  proposed  to  be  submitted  to  the 
committee,  on  the  recommital,  is  to  be  deposited  in  the  private  bill 
office  one  clear  day  before  the  meeting  of  the  committee.  Unless 
the  bill  is  recommitted  by  the  house,  with  express  reference  to  par- 
ticular provisions,  the  whole  bill  is  open  to  reconsideration  by  the 
committee.'^ 

250X  When  amendments  are  made  by  the  house,  on  the  report 
or  third  reading,  or  when  amendments  of  the  other  house  are  agi-eed 
to,  they  are  entered  by  one  of  the  clerks  in  the  private  bill  office, 
upon  the  printed  copy  of  the  bill,  as  amended  by  the  committee ; 
and  such  copy  is  signed  by  the  clerk,  as  amended,  and  preserved  in 
the  office.'* 

2504.  One  clear  day's  notice,  in  \vi-iting,  must  be  given  by  the 
agent  for  the  bill,  to  the  clerks  in  the  private  bill  office,  of  the  day 
proposed  for  the  third  reading;  but  this  notice  is  not  to  be  given 
until  after  the  bill  has  been  ordered  to  be  read  a  third  time.  The 
proceedings  on  the  third  reading  of  private  bills  are  the  same  as  in 
the  case  of  public  bills ;  but  if  clauses  are  olfered,  or  amendments 
proposed,  they  are  subject  to  the  rules  already  stated  in  regard  to 
the  report,  or  further  consideration  of  the  report.     If  the  bill  is 

1  "Shxw  554.  '  ^liiy,  555. 

2  M:iv,  555.  *  Miiy.  555. 

81* 


966  LEGISLATIVE   ASSEMBLIES.  [PaRT    VIII. 

finally  approved  by  the  house,  \\dth  the  alterations,  if  any,  made 
subsequently  to  the  second  reading,  it  is  passed  and  sent  to  the 
house  of  lords. 

2505.  No  private  bill  is  permitted  to  be  sent  up  to  the  house  of 
lords,  until  a  certificate  is  indorsed  on  the  fair  printed  bill,  and 
signed  by  the  proper  officers,  declaring  that  such  printed  bill  has 
been  examined,  and  agrees  with  the  bill  as  read  a  third  time.^ 

2506.  The  foregoing  is  an  outline  of  the  proceedings,  which  take 
place  in  the  house  of  commons,  on  the  passage  of  a  private  bill 
originally  introduced  therein  through  its  several  stages.  Two  gen- 
eral rules  are  applicable  in  all  cases,  namely,  y?rs^,  "  That  no  private 
bill  may  pass  through  two  stages  on  one  and  the  same  day ;  "  and, 
second,  "  That  (except  in  cases  of  urgent  and  pressing  necessity)  no 
motion  may  be  made  to  dispense  with  any  sessional  or  standing 
order  of  the  house,  without  due  notice  thereof. "  ^ 

2507.  The  proceedings  betv^^een  the  two  houses,  in  regard  to 
amendments  to  private  bills,  differ  in  no  respect  from  those  which 
have  been  abeady  described,  with  reference  to  public  bills.  When 
the  amendments  made  by  the  lords  are  to  be  taken  into  considera- 
tion by  the  commons,  notice  is  required  to  be  given  in  the  private 
biJl  office,  on  the  previous  day ;  but  this  notice  cannot  be  given 
until  the  day  after  that  on  which  the  bill  has  been  received  from 
the  lords.  If  any  amendments  are  proposed  thereto,  a  similar  no- 
tice is  to  be  given,  and  a  copy  of  such  amendments  to  be  deposited. 
A  copy  is  also  to  be  laid  before  the  chairman  of  the  ways  and 
means,  and  the  speaker's  counsel,  before  two  o'clock  on  the  day 
previous  to  that  on  which  they  are  to  be  considered.  And  as  the 
lords'  amendments  may  relate  to  matters  which  might  be  considered 
to  involve  an  infringement  of  the  privileges  of  the  commons,  and 
the  amendments  proposed  by  the  latter  may  be  in  the  nature  of 
consequential  amendments,  the  speaker's  sanction  should  be  ob- 
tained before  they  are  proceeded  with.  Before  lords'  amendments 
are  taken  into  consideration,  they  are  printed  at  the  expense  of  the 
parties,  and  circulated  with  the  votes ;  and  when  a  clause  has  been 
amended,  or  a  lords'  amendment  is  proposed  to  be  amended,  it  is 
printed  at  length,  with  every  addition  or  substitution  in  different 
types,  and  omissions  included  in  brackets,  and  underlined.^ 

2508.  In  case  a  private  biU  should  not  be  proceeded  with  in  the 
house  of  lords,  in  consequence  of  amendments  having  been  made 

1  May,  556.  «  May,  557. 

«  May,  556. 


Chap.  VI.]     proceedings  in  the  lords  on  private  bills.        967 

there,  which  infringe  the  privileges  of  the  common?,  the  same  pro- 
ceedings are  adopted  as  in  the  case  of  public  bills.  A  committee 
is  appointed  to  search  the  lords' journals,  of  which  nolice  is  to  be 
given  by  the  agent,  in  the  committee  clerk's  olFice;  and,  on  the 
report  of  the  committee,  anotlier  bill  will  be  ordered,  including 
the  amendments  made  by  the  lords.^ 


CHAPTER    SIXTH. 

DIFFERENCES  IN  THE  MODES  OF  PROCEEDING  BETWEEN  THE  TWO 

HOUSES. 

2509.  Having  thus  briefly  stated  the  proceedings,  with  regard  to 
private  bills,  in  the  house  of  commons,  it  now  remains  to  mention 
some  particulars,  in  which  the  proceedings  of  the  tAvo  houses 
differ.  As  a  consequence  of  the  fundamental  principle  of  the 
English  constitution,  that  all  bills  imposing  a  charge  upon  the  peo- 
ple must  originate  in  the  house  of  commons,  it  is  necessary,  that 
every  private  bill,  which  contains  provisions  for  rates,  tolls,  penal- 
ties, or  other  charges,  (under  which  description,  the  greater  number 
of  private  bills  is  embraced,)  should  be  introduced  and  first  passed 
in  the  house  of  commons.  According  to  this  rule,  some  few  of  the 
private  bills  included  in  the  first  class  may  occasionally  originate  in 
the  lords,  because  rates,  tolls,  or  duties  are  not  essential  to  their 
operation ;  but  all  bills  in  the  second  class  must  be  brought  into 
the  commons  on  petition,  and  the  others  are,  with  very  rare  excep- 
tions, also  commenced  in  the  same  house.'-  On  the  other  hand,  the 
lords  claim  that  all  bills  for  the  restitution  of  honors  and  in  blood 
should  commence  with  them.  Bills,  which,  in  practice,  are  first 
brought  into  the  house  of  lords,  are  estate,  naturalization,  name, 
and  divorce  bills,  and  such  as  relate  to  the  peerage.^ 

2510.  The  progress  of  a  bill  through  the  lords,  after  it  has  passed 
the  commons,  is  much  facilitated  by  the  practice  of  laying  the  bill 
before  the  chairman  of  the  lords'  committees,  and  his  counsel, 
(answering  to  the  speaker's  counsel  in  the  commons,)  and  giving 
effect  to  their  observations  during  the  progress  of  the  bill  through 

1  May,  657.  *  May,  568. 

>  May,  667. 


968  LEGISLATIVE  ASSEMBLIES.  [PaRT    VIII. 

the  commons.  The  amendments  suggested  in  the  lords  are  thus 
embodied  with  the  amendments,  before  the  bill  has  passed  the 
commons;  and  unless  the  bill  should  be  opposed,  its  progress 
through  the  lords  is  at  once  easy  and  expeditious.  Anolhcr  advan- 
tage of  this  mode  of  amending  a  bill,  as  it  were,  by  anticipation, 
is,  that  numerous  amendments  may  then  be  conveniently  intro- 
duced, Avhich  could  not  be  made  by  the  lords,  without  infringing 
the  privilege  of  the  commons.^ 

2511.  The  lords,  having  power  to  consult  the  judges  in  matters 
of  law,  require  that  petitions  presented  in  that  house,  for  the  pass- 
ing of  estate  bills  and  bills  of  a  similar  character  received  from  the 
commons,  shall  be  referred  to  two  of  the  judges  in  rotation,  not 
being  lords  of  parliament,  who  are  to  report  their  opinion,  whether 
assuming  the  allegations  of  the  preamble  to  be  satisfactorily  estab- 
lished, it  would  be  reasonable  to  pass  the  bill ;  and  whether  the 
provisions  are  proper  for  carrying  its  purposes  into  effect,  and  what 
alterations  or  amendments  are  necessary.  The  report  of  the  judges 
is  required  to  be  delivered  to  the  chairman  of  committees.  If 
favorable,  the  bill  may  then  be  presented  and  read  a  first  time ;  if 
adverse,  the  bill  is  not  offered  at  all ;  if  the  report  objects  to  par- 
ticular provisions,  or  suggests  others,  the  bill  is  altered  accordingly 
before  being  presented.  In  the  event  of  their  approving  the  bill, 
the  judges  are  to  sign  it ;  but,  except  in  special  cases,  no  other 
commons'  bills  are  referred  to  the  judges.'-^ 

2512.  A  "committee  for  standing  orders"  is  appointed  at  the 
commencement  of  every  session,  which  combines  the  functions  of 
the  examiner  of  petitions  for  bills  and  on  standing  orders,  in  the 
commons.  This  committee  consists  of  forty  members,  together 
with  the  chairman  of  the  lords'  committees,  who  is  always  the 
chairman ;  and  three  lords,  including  the  chairman,  are  a  quorum. 

2513.  Before  the  secgnd  reading  of  any  private  bill  in  either  of 
the  two  classes,  the  bill  is  referred  to  the  standing  order  committee, 
before  whom  compliance  with  the  several  standing  orders  applica- 
ble thereto  is  required  to  be  proved ;  and  before  whom  any  parties 
are  at  liberty  to  appear  and  be  heard,  upon  their  petition  presented 
and  referred  to  the  committee,  complaining  of  a  non-compliance 
with  the  standing  orders.  Statements  of  proofs  are  prepared,  and 
evidence  introduced,  in  the  same  form  as  in  the  commons,  before 
the  examiners ;  the  main  differences  being,  that  in  the  lords  affida- 
vits are  not  received,  and  that  all  the  witnesses  are  required  to 

1  May,  558.  '  *  May,  558,  570. 


OlAP.  VL]      PROCEEDINGS   IN   THE   LORDS    ON   PRIVATE   BILLS. 


969 


have  been  previously  sworn  at  the  bar  of  the  honseJ  The  orders, 
which  the  promoters  of  a  private  bill  are  required  to  prove  in  the 
lords,  are,  for  the  most  part,  similar  to  those  which  are  estaljlislied 
in  the  commons. 

2514.  The  standing  order  committee  makes  a  similar  report  in 
the  lords  to  the  report  made  by  the  examiners  in  the  commons,  and 
no  bill  included  in  either  of  the  two  classes  is  read  a  second 
time  before  the  third  day  on  which  the  house  sits  after  the  bill  has 
been  reported  from  the  committee  for  standing  orders.  The  second 
reading,  as  in  the  commons,  affirms  the  principle  of  the  bih,  and  is 
immediately  followed  by  the  commitment.^ 

2515.  Unopposed  bills  are  referred  to  "  all  the  lords  present  this 
day,"  who  are  presided  over  by  the  chairman  of  the  lords'  commit- 
tees, whose  duties,  in  reference  to  private  bills,  are  similar  to  those 
of  the  chairman  of  the  committee  on  ways  and  means  in  the  house 
of  commons.  These  open  committees  may  be  and  are  attended  by 
any  of  the  lords  present ;  but  the  business  is,  in  fact,  transacted  by 
the  chairman,  upon  whom  the  responsibility  is  imposed  by  the 
house.  He  is  assisted  in  his  duties  by  a  counsel  attached  to  his 
office,  who  previously  examines  the  provisions  of  every  private  bill, 
and  points  out  any  variance  with  the  standing  orders,  or  the  general 
laws  of  the  country.  The  chairman  of  committees  may,  in  any 
case,  report  his  opinion  to  the  house,  that  an  unopposed  bill  ought 
to  be  proceeded  with  as  an  opposed  bill ;  in  which  case,  it  will  be 
refeiTcd  to  another  committee,  as  if  it  had  been  treated  as  an 
opposed  bill  in  the  first  instance. 

2516.  Every  opposed  bill  is  referred  to  a  select  committee  of  five 
lords,  who  choose  their  own  chairman.  Each  member  of  this  com- 
mittee is  required  to  attend  dming  the  whole  continuance  of  the 
inquiry,  and  none  but  members  can  take  any  part  in  the  proceed- 
ings. These  committees  are  appointed  by  a  committee,  which  is 
named  by  the  house,  at  the  commencement  of  every  session,  con- 
sisting of  the  chairman  of  committees,  and  four  other  lords ;  whose 
duty  it  is,  to  select  and  propose  to  the  house  the  names  of  the  five 
lords,  who  are  to  form  a  select  committee  for  the  consideration  of 
every  opposed  private  bill. 

2517.  The  time  for  the  first  meeting  of  the  committee  is  appointed 
by  the  house,  and  the  attendance  of  the  members  is  very  strictly 
enforced.  The  duties  of  the  committee  on  a  bill,  whether  opposed 
or  not,  and  their  proceedings,  differ  in  no  material  point  from  those 

>  May,  569,  560.  '■'  May,  563,  564. 


070  LEGISLATIVE    ASSEMBLIES.  [PART    VI.TL 

of  committes  of  the  house  of  commons,  which  have  already  been 
described,  except  that  in  the  lords,  the  witnesses  are  examined  upon 
oath,  previously  administered  to  them  at  the  bar  of  the  house.  The 
proceedhigs  upon  the  report,  and  on  the  third  reading,  are  also 
similar.  In  the  event  of  any  disagreement  between  the  houses,  in 
reference  to  amendments,  the  same  forms  are  observed  as  in  the 
case  of  public  bills.^ 

2518.  In  proceedings  with  reference  to  divorce  bills,  the  standing 
orders  require,  that  the  party  presenting  a  petition  for  such  a  bill, 
should,  previously  to  presenting  the  same,  produce  an  official  copy 
of  the  proceedings  in  the  ecclesiastical  court,  and  of  a  definitive 
sentence  of  divorce  therein,  a  mensa  et  thoro,  at  the  suit  of  such 
party;  that  if  any  trial  shall  have  taken  place,  or  any  writ  of 
inquuy  been  executed,  within  the  United  Kingdom,  relative  to  the 
alleged  cause  of  divorce,  wherein  the  petitioner  shall  have  been  a 
party,  a  report  of  the  proceedings  upon  such  trial  or  writ  of  inquiry 
shall  be  laid  upon  the  table  of  the  house,  before  the  biU  shall  be 
read  a  second  time ;  that,  upon  the  second  reading  of  the  bill,  the 
petitioner  shall  attend  the  house,  (unless  such  attendance  be  spe- 
cially dispensed  with,)  in  order  to  be  examined  at  the  bar,  if  the  house 
shall  think  fit,  as  to  whether  there  has  been  any  coUusion,  directly 
or  indhectly,  on  the  part  of  such  party,  with  the  other  party,  or 
with  any  other  person,  touching  the  bill  of  divorce,  or  the  proceed- 
ings relating  to  the  alleged  ground  of  the  same,  either  at  law,  or  in 
the  ecclesiastical  court,  and,  whether,  ^t  the  time  of  the  adultery, 
the  parties  were  living  together  or  separate.^ 

2519.  The  standing  orders  also  provide,  that  no  bill  of  divorce 
founded  on  a  petition  to  dissolve  a  marriage  for  the  cause  of  adul- 
tery, and  to  enable  the  petitioner  to  marry  again,  shaU  be  received 
in  the  house,  unless  it  provides,  that  it  shall  not  be  lawful  for  the 
party,  whose  marriage  with  the  petitioner  shall  be  dissolved,  to 
intermarry  with  any  offending  party,  on  account  of  whose  adultery 
with  such  party,  it  shall  be  enacted  in  the  bill  that  the  marriage  is 
dissolved.  This  clause,  though  required  to  be  inserted  in  the  bill, 
is  usually  sti'uck  out  by  the  committee,  except  in  very  peculiar 
cases.'^ 

2520.  Notice  of  the  second  reading  of  a  divorce  bill,  with  an 
attested  copy  of  the  biU,  signed  by  the  clerk's  assistant,  is  required 
to  be  served  upon  the  party,  husband  or  wife,  as  the  case  may  be, 
against  whom  the  biU  is  prosecuted,  and  such  service  must  be 

»  May,  669.  »  May,  573.  >  «  May,  573. 


Chap.  VI.]     proceedings  in  the  lords  on  private  billss.      971 

proved  on  the  second  reading ;  but,  if  Ihe  party  cannot  be  found,  oi 
is  in  a  distant  part  of  the  world,  service  may  be  made  on  the  agent 
of  such  party,  upon  a  petition  from  the  agent  of  the  promoter  of 
the  bill,  stating  the  facts,  and  proof  thereof  on  oath  at  the  bar.  On 
the  second  reading,  counsel  are  heard  and  witnesses  examined  at 
the  bar,  in  support  of  the  bill,  whether  there  are  any  opposing  pe- 
titions or  not ;  and,  after  the  second  reading,  the  bill,  instead  of 
being  referred  to  an  open  committee,  or  to  a  selected  committee, 
like  oiher  private  bills,  is  committed,  like  a  public  bill,  to  a  commit- 
tee of  the  whole  house.^ 

2521.  In  divorce  bills,  the  proceedings  of  the  ecclesiastical  court, 
the  sentence  of  divorce,  and  the  proceedings  on  the  trial,  are  before 
the  house,  but  are  not  admitted  as  evidence  to  establish  the  fact  of 
adultery.  Of  that  fact,  the  house  may  be  satisfied  by  other  testi- 
mony oiTered  at  the  bar;  and  if  that  fails,  the  bill  will  not  be  read 
a  second  time,  even  when  there  is  no  opposition  to  it.- 

2522.  When  the  petitioner  for  a  divorce  bill  states  that  the  wit- 
nesses necessary  to  substantiate  the  allegations  of  the  bill,  are  in 
India,  the  speaker  of  the  house  in  which  the  petition  is  presented, 
is  authorized  by  the  statute  of  1  Geo.  IV.  c.  101,  to  issue  a  warrant 
for  the  examination  of  witnesses  to  the  judges  of  the  several  su- 
preme courts  in  India  ;  and  the  evidence  taken  before  them,  accom- 
panied by  a  declaration  that  the  examinations  have  been  fairly  con- 
ducted, is  declared  by  the  same  statute  to  be  admissible  in  either 
house  of  parliament.  When  a  warrant  has  been  issued  under  this 
act,  the  proceedings  are  suspended  until  the  retm-n  of  the  same, 
and  are  not  discontinued  by  any  prorogation  or  dissolution  pre- 
viously occurring ;  but  may  be  resumed  and  proceeded  upon  in  a 
subsequent  session  or  parliament,  in  the  same  manner,  and  with 
the  like  effect,  as  if  no  dissolution  or  prorogation  had  taken  place.^ 

2523.  In  the  house  of  commons,  the  manner  of  dealing  with 
divorce  bills  is  peculiar,  and  differs  from  the  mode  of  proceeding 
upon  other  bills.  At  the  commencement  of  each  session,  a  com- 
mittee is  appointed,  consisting  of  nine  members,  of  whom  tlu-ee  are 
a  quorum,  and  which  is  denominated  "  the  select  committee  on 
divorce  bills."  To  this  committee,  all  divorce  bdls  are  referred, 
after  the  second  reading,  with  an  instruction  to  hear  counsel  and 
examine  witnesses  for  the  bill ;  and  to  hear  counsel  and  examine 
witnesses  against  the  bill,  if  the  parties  concerned  think  fit  to  be 
heard  by  counsel,  or  to  produce  witnesses.     By  the  terms  of  the  in- 

»  May,  574  »  May,  574.  »  May,  575 


972  LEGISLATIVE   ASSEMBLIES.  [PaRT  VI I  L 

strnction,  Ihe  promoter  is  bound  to  examine  witnesses,  or  otherwise 
to  substantiate  the  allegations  of  the  bill ;  but  the  party  opposing 
is  at  hberty  to  be  heard  or  not,  as  he  or  she  shall  think  proper.  At 
the  same  time,  a  message  is  sent  to  the  lords,  to  request  them  to 
communicate  a  copy  of  the  minutes  of  evidence  taken  before  them 
upon  the  bill,  or  for  the  depositions  transmitted  from  India.  When 
these  are  communicated,  they  are  referred  to  the  committee  on  the 
bill.  The  latter  are  made  evidence  by  the  statute  above  mentioned. 
The  former  seem  to  be  nothing  more  than  memoranda,  by  which 
the  committee  may  aid  themselves  in  examining  the  witnesses.^ 
The  committee  is  also  directed  by  the  standing  orders,  to  require 
evidence,  that  an  action  for  damages  has  been  brought  against  the 
person  supposed  to  be  guilty  of  adultery,  and  judgment  for  the 
plaintiff  had  thereupon ;  or  sufficient  cause  to  be  shown,  why  such 
action  has  not  been  brought,  or  such  judgment  not  obtained. 

2524.  Where  petitioners  have  been  required  to  be  in  attendance 
in  the  house  of  lords,  whilst  the  bill  was  pending  there,  to  be  exam- 
ined as  to  collusion,  if  the  house  thinks  proper,  the  committee  of 
the  commons  is,  in  all  cases,  to  require  their  attendance  before  it, 
for  the  same  purpose.  The  committee  is  required  to  report  the  bill 
to  the  house,  whether  it  shall  or  shall  not  have  agreed  to  the  pre- 
amble, or  gone  through  the  several  clauses,  or  any  of  them. 

2525.  In  the  progress  of  private  bills  from  the  lords  through  the 
commons,  they  are  subject  to  the  same  rules,  and  pass  through  the 
same  stages,  and  with  the  same  intervals  and  notices,  as  those 
which  have  been  already  detailed  in  reference  to  private  bills 
oriofinatinij  in  the  commons ;  but  if  received  at  the  close  of  a  ses- 
sion,  more  indulgence  is  usually  shown  in  dispensing  with  the 
orders  of  the  house,  and  in  perrnitting  them  to  pass  with  less 
delay.2 

1  Pari.  Reg.  (2),  XVIII.  27,  30,  33.  «  May,  579. 


CH.\r.    VII.]  PRIVATE    BILLS   AFTER   ROYAL   ASSENT.  973 


CHAPTER   SEVENTH. 

OF  PRIVATE   BILLS   AFTER   RKCEIVING   THE   ROYAL  ASSENT;   AND 

OF  FEES  AND   COSTS. 

2526.  All  private  bills,  during  their  progress  in  the  commons, 
are  known  only  by  the  general  denomination  of  private  bills ;  but 
in  the  lords  the  term  "  private  "  is  applied  technically  to  estate  bills 
only,  all  other  bills  being  distinguished  as  "local"  or  "personal," 
although  no  such  distinction  is  expressed  in  the  standing  orders. 
After  receiving  the  royal  assent,  private  bills  are  divided  into  three 
classes :  1.  Local  and  personal,  declared  public ;  2.  Private,  printed 
by  the  queen's  printers  ;  and  3.  Private,  not  printed. 

2527.  (1.)  Every  local  and  personal  act  passed  previous  to  the 
year  1850,  contained  a  clause,  declaring  that  it  "  shall  be  a  public 
act,  and  shall  be  judicially  taken  notice  of  as  such,"  and  receives 
the  royal  assent  as  a  public  act.  This  practice  commenced  in  the 
reign  of  W^illiam.and  Mary,  and  was  soon  extended  to  nearly  all 
private  acts  by  which  felonies  were  created,  penalties  inflicted,  or 
tolls  imposed.! 

2528.  (2.)  From  1798  to  1815,  the  private  acts,  not  declared  pub- 
lic, were  not  printed  by  the  queen's  printers,  and  could  .only  be 
given  in  evidence  by  obtaining  authenticated  copies  from  the  statute 
rolls  in  the  parliament  office ;  but  since  1815,  the  great^^r  part  of  the 
printed  acts  have  been  printed  by  the  queen's  printers,  and  contain 
a  clause  declaring  that  a  copy  so  printed  "  shall  be  admitted  as  evi- 
dence thereof  by  all  judges,  justices,  and  others." 

2529.  (3.)  The  last  class  of  acts  consists  of  those  which  still  re- 
main unprinted.  These  are  name,  naturalization,  divorce,  and 
other  strictly  personal  acts,  of  which  a  list  is  always  printed  by  the 
queen's  printers,  after  the  titles  of  the  other  private  acts. 

2530.  The  main  distinction  in  law  between  these  classes  of  acta 

1  But  by  Lord  Brougham's  act  of  1850,  for  and  personal  acts.     Such  acts  were  printed 

shortening  the  language  of  acts  of  parliament,  with  the  other  statutes  of  the  year,  and  were 

it  is  enacted,  tliat  every  act  "  shall  be  deemed  not  distinguishable  from  public  acts,  except 

and  taken  to  be  a  public  act,  and  shall  be  by   the   character  of  their   enactments;   but 

judicially  taken  notice  of  as  such,  uidess  the  since  1798,  they  have  been  printed  in  a  sepa- 

contn.ry'bc  expressly  provided  and  declared  rate   collection,  and  are  known  as  local  and 

by  such   act  ;  "    and   the  public  clause  will  personal  acts.     May,  5S0. 
consequently  be  omitted  from  all  future  local 

82 


974  LEGISLATIVE  ASSEMBLIES.  [PaRT  VIIl 

is,  that  a  local  and  personal  act,  which  is  declared  to  be  a  public 
act,  may  be  used  for  all  purposes,  as  a  public  general  statute.  It 
may  be  given  in  evidence  upon  the  general  issue,  and  must  be 
judicially  noticed,  without  being  formally  set  forih.  Nor  is  it 
necessary  to  show  that  it  was  printed  by  the  queen's  printers,  as 
the  words  of  the  public  clause  do  not  require  it,  and  the  printed 
copy  of  a  public  act  is  supposed  to  be  used  merely  for  the  purpose 
of  refreshing  the  memory  of  the  judge,  who  has  already  been  made 
acquainted  with  its  enactrnxcnts.  A  private  act,  on  the  contrary, 
whether  printed  or  not,  must  be  specially  pleaded,  and  given  in  evi- 
dence like  any  other  record ;  but  the  copy  printed  by  the  queen's 
printers,  in  the  one  case,  is  received  as  an  examined  copy  of  the 
record ;  while,  in  the  other,  an  authenticated  copy  must  be  pro- 
duced from  the  statute  rolls  in  the  parliament  office.^  Since  Lord 
Brougham's  act,  however,  this  distinction  betv/een  public  and  pri- 
vate acts  is  done  away  with,  as  every  public  act  is  required  to  be 
judicially  noticed,  unless  the  contrary  is  expressly  declared.  And 
by  the  8  and  9  Vict.  c.  113,  §  3,  it  is  enacted,  that  aU  copies  of 
private  and  local  and  personal  acts,  not  public,  if  purporting  to 
be  printed  by  the  queen's  printers,  shall  be  admitted  in  evidence 
thereof  by  aU  courts,  judges,  justices,  and  others,  without  any  proof 
being  given  that  such  copies  were  so  printed.'-^ 

2531.  Fees  are  chargeable  in  boih  houses,  upon  the  various 
stages  of  private  bills,  and  are  payable  by  the  several  parties  pro- 
moting or  opposing  such  bills;  the  parliamentary  agents  eniployed 
by  the  parties  being  responsible  for  the  same  to  officers  of  the  house, 
whose  special  duty  it  is  to  take  care,  that  such  fees  are  properly 
paid  ;  and  if  a  parhamentary  agent  neglects  his  duty  in  this  respect, 
and  is  reported  as  a  defaulter,  the  speaker  gives  orders  that  his 
functions  as  agent  shall  be  suspended,  until  further  directions  have 
been  given  by  the  house.^ 

2532.  The  last  matter  to  be  mentioned  in  connection  with  the 
passing  of  private  bills,  is  the  taxation  of  the  costs  incuiTcd  by  the 
promoters,  opponents  and  other  parties,  and  payable  by  them  to 
their  parliamentary  agents.  By  acts  recently  passed,  in  both  houses, 
a  regular  system  has  been  established,  for  ascertaining  the  reason- 
able and  proper  costs  arising  out  of  every  applicai  ion  to  parha- 
ment ;  a  taxing  officer  has  been  appointed  in  each  house  for  the 
purpose ;  and  Usts  have  been  prepared,  defining  the  charges  which 

1  Phillipps  &  Amos,  II.  611 ;  May,  581.  «  May.  582,  583. 

>  May,  582. 


Chap.  VIL]        private  bills  after  royal  assent.  975 

parliamentary  agents  and  solicitors  will  be  allowed  for  the  various 
services  usually  rendered  by  them.^ 

2533.  Any  person  upon  whom  a  demand  is  made  by  a  parlia- 
mentary agent  or  solicitor,  for  any  costs  incurred  in  respect  of  any 
proceedini^s  in  the  house,  or  in  complying  with  its  standing  orders, 
may  apply  to  the  taxing  officer  for  the  taxation  of  such  costs ;  and 
any  parUumcntary  agent  or  solicitor,  who  may  be  aggrieved  by  the 
non-payment  of  his  costs,  may  apj)ly,  in  the  same  manner,  to  have 
his  costs  taxed,  preparatory  to  the  enforcement  of  his  claims.  The 
taxinir  officer  of  either  house  is  thus  enabled  to  tax  the  whole  of 
a  bill  brought  before  him  for  taxation,  whether  the  costs  relate  to 
the  proceedings  of  that  house  only,  or  to  the  proceedings  of  both 
houses;  and  also  other  general  costs  incurred  in  reference  to  a 
private  bill  or  petition. 

2534.  In  the  commons  the  taxing  officer  reports  his  taxation  to 
the  speaker,  and  in  the  lords  to  the  clerk  of  the  parliaments.  If  no 
objection  is  made  with'u  twenty-one  days,  either  party  may  obtain 
from  the  speaker  or  cl(>rk,  as  the  case  may  be,  a  certificate  of  the 
costs  allowed,  which,  in  any  action  brought  for  the  recovery  of  the 
amount  so  certified,  wiU  have  the  effect  of  a  warrant  of  attorney  to 
confess  judgment,  unless  the  defendant  shall  have  pleaded  that  he 
is  not  liable  to  the  payment  of  the  costs.- 

»  May,  583,  564.  «  May,  584,  ESo. 


LAW  AND   PRACTICE 


OF 


LEGISLATIVE    ASSEMBLIES. 


PART    NINTH. 

IMPEACIOIENT. 

82*  (vn) 


LAW  AND  PRACTICE 


ov 


LEGISLATIVE    ASSEMBLIES. 


PART    NIXTII. 

IMPEACHMENT. 


2535.  It  has  already  been  stated,  that  parliament  exercises  a 
judicial  power,  for  the  trial  and  punishment  of  offenders,  in  certain 
cases,  by  means  of  bills  of  attainder  and  of  pains  and  penalties. 
In  proceedings  of  this  description  each  house  participates  as  a  legis- 
lative body,  and  the  concurrence  of  both  is  necessary.  The  person, 
against  whom  the  bill  is  directed,  is  tried,  so  far  as  any  trial  takes 
place,  first  by  the  one  house  and  then  by  the  other,  and  if  the  bill 
passes,  is  found  guilty  by  both.  There  is  also  another  form  of 
proceeding,  in  which  one  house,  the  commons,  appears  solely  in  the 
character  of  complainants  or  accusers,  and  the  other,  the  lords,  per- 
forms the  functions  of  a  judicial  tribunal.  A  prosecution  of  this 
character  is  known  by  the  name  of  impeachment. 

2536.  The  earliest  instance  of  an  impeachment  by  the  commons, 
at  the  bar  of  the  lords,  was  in  the  year  1376,  in  the  reign  of  Edward 
TIL  Before  this  time,  the  practice  had  been  for  the  lords  to  try 
persons,  whether  peers  or  commoners,  without  any  previous  com- 
plaint or  interference  on  the  part  of  the  commons,  for  great  public 
offences.  At  this  period,  the  only  participation  of  the  commons,  in 
the  making  of  laws,  was  in  the  form  of  a  petition  to  the  king  and 
lords,  praying  that  the  law  desired  might  be  enacted.     When  they 

(1)79) 


980  LEGISLATIVE    ASSEMBLIES.  [PaRT    IX. 

extended  their  inquiries  into  the  official  conduct  of  great  public 
officers,  they  proceeded  in  the  same  manner,  and  petitioned  the  king 
and  lords  that  they  might  be  brought  to  trial  for  their  offences. 
This  was  the  introduction  of  the  proceeding  by  impeachment, 
which,  by  the  practice  of  succeeding  times,  has  become  established 
as  a  constitutional  mode  of  bringing  gi-eat  offenders  to  justice,  and 
has  attained  a  distinct  and  well-settled  form.^ 

2537.  During  the  four  reigns,  which  succeeded  that  of  Edward 
III.,  impeachments  were  frequent;  but  in  the  reigns  of  Edward  IV., 
Henry  YIL,  Henry  VIIL,  Edward  VL,  Mary,  and  Elizabeth,  no 
instances  of  it  occurred.  Mr.  Hallam  remarks,  that  dm-ing  this 
latter  period,  "  the  institution  had  fallen  into  disuse,  partly  from  the 
loss  of  that  control  which  the  commons  had  obtained  under  Richard 
IL,  and  the  Lancastrian  kings,  and  partly  from  the  preference  the 
Tudor  princes  had  given  to  bills  of  attainder  or  of  pains  and  penal- 
ties, when  they  wished  to  turn  the  arm  of  parliament  against  an 
obnoxious  subject."  ^  Perhaps,  also,  the  prosecutions  in  the  star- 
chamber,  which  were  resorted  to  by  the  sovereign,  during  these 
reigns,  for  the  punishment  of  state  offenders,  may,  to  some  extent, 
have  supplied  the  place  of  impeachments.^ 

2538.  In  the  reign  of  James  I.  the  practice  of  impeachment  was 
revived,  and  used  with  great  energy  by  the  commons,  both  as  an 
instrument  of  popular  power,  and  for  the  furtherance  of  public  jus- 
tice. Between  the  year  1620,  when  Sir  Giles  Monpesson  and  the 
lord  chancellor  Bacon  were  impeached,  and  the  revolution  of  1688, 
there  were  about  forty  cases  of  impeachment.  In  the  reigns  of 
"William  III.,  Anne,  and  George  I.,  there  were  fifteen ;  and  in  the 
reign  of  George  IL,  only  one,  that  of  Lord  Lovat,  for  high  treason, 
in  the  year  1746.  The  last  cases  were  those  of  Warren  Hastings, 
in  1788,  and  of  lord  MelviUe,  in  1805.* 

2539.  The  purpose  of  impeachment,  in  modern  times,  is  the 
prosecution  and  punishment  of  high  crimes  and  misdemeanors, 
chiefly  of  an  official  or  political  character,  which  are  either  beyond 
the  reach  of  the  law,  or  which  no  other  authority  in  the  State,  but 
the  supreme  legislative  power,  is  competent  to  prosecute  ;  and,  by 
the  law  of  parliament,  all  persons,  whether  peers  or  commoners, 
may  be  impeached  for  any  crimes  or  offences  whatever.^ 

2540.  This  extraordinary  judicature  seems  to  have  been  called 
intx)  action  most  frequently,  and  then  to  have  been  most  needed,  in 

1  May,  49,  50.  *  May,  49,  50. 

2  Cons.  Hist.  357.  *  May,  474. 
8  May,  49. 


Part  IX.]  impeacument.  981 

times  when  the  people  had  reason  to  be  jealous  of  the  crown  ;  when 
parliament  had  less  control  over  prerogative ;  when  judges  held 
their  offices  at  the  pleasure  of  the  crown,  and  courts  of  justice 
were  less  pure ;  and  when,  instead  of  vindicating  the  law,  its  exe- 
cution was  resisted,  and  political  offenders  were  screened  from 
justice,  by  the  crown  and  its  officers.  But,  at  the  present  day, 
since  th^  limitations  upon  the  prerogative,  the  immediate  respon- 
sibility of  the  ministers  of  the  crown  to  parliament,  the  vigilance 
and  activity  of  parliament  in  scrutinizing  the  actions  of  public 
men,  the  settled  administration  of  the  law,  and  the  direct  influ- 
ence of  parliament  over  courts  of  justice,  and  the  independence  of 
the  latter  of  the  crown,  the  offences  properly  punishable  by  im- 
peachment have  been  of  rare  occm*rence. 

2541.  In  this  proceeding,  the  commons  are  said  to  act  as  the 
grand  inquest  of  the  whole  kingdom,  in  investigating  the  subject  of 
a  supposed  offence,  and  in  agreeing  upon  and  drawing  up  the 
articles  of  impeachment.  While  engaged  in  this  preliminary  step, 
the  commons  proceed  in  the  same  manner,  and  upon  the  same  evi- 
dence, as  in  relation  to  ordinary  matters  of  legislation.  According 
to  the  usual  practice,  a  member,  in  his  place,  first  charges  the  ac- 
cused with  high  treason,  or  some  other  high  crime  or  misdemeanor, 
and  after  supporting  his  charge  with  proofs,  moves  that  the  person 
thus  implicated,  be  impeached.  If  the  house  deems  the  grounds  of 
accusation  sufficient,  and  agrees  to  the  motion,  the  member,  by 
whom  it  was  madi^,  is  ordered  to  go  to  the  lords,  "  and  at  their  bar, 
in  the  name  of  the  house  of  commons,  and  of  all  the  commons  of 
the  United  Kingdom,  to  impeach  the  accused ;  and  to  acquaint 
them,  that  this  house  will,  in  due  time,  exhibit  particular  articles 
against  him,  and  make  good  the  same."  The  member,  thereupon, 
iccompanied  by  as  many  others  as  are  necessary  to  go  with  a  mes- 
sage, proceeds  to  the  bar  of  the  house  of  lords,  and  impeaches  the 
accused  accordingly.^ 

2542.  The  articles  of  impeachment  have  usually  been  prepared 
after  the  formal  impeachment  above  described  ;  though,  in  the  case 
of  Warren  Hastings,  it  was  otherwise.  A  committee  is  appointed 
to  draw  up  the  articles,  who  proceed  accordingly,  and,  on  their  re- 
port, the  articles  are  considered.  When  agreed  to,  they  are 
engrossed  and  delivered  to  the  lords,  with  a  saving  clause,  provid- 
mg  that  the  commons  shall  be  at  liberty,  if  they  think  proper,  to 
exhibit  further  articles  from  time  to  time. 

1  May,  476 


y82  LEGISLATIVE   ASSEMBLIES,  [PaRT  IX. 

2543.  Upon  the  formal  impeachment,  at  the  bar  of  the  lords,  if 
the  accused  is  a  peer,  he  is  attached  or  restrained  in  custody,  by  order 
of  the  house  of  lords ;  if  a  commoner,  he  is  taken  into  custody  by 
the  sergeant-at-arms  attending  the  commons,  by  whom  he  is  deliv- 
ered to  the  gentleman  usher  of  the  black  rod,  in  whose  custody  he 
remains,  unless  he  is  admitted  to  bail  by  the  house  of  lords,  or 
otherwise  disposed  of  by  its  order.^  • 

2544.  Copies  of  the  articles  of  impeachment  are  furnished  by 
the  house  of  lords  to  the  party  accused,  who  answers  each  of  them 
in  WTiting,  and  copies  of  all  such  answers  are  communicated  by 
the  lords  to  the  commons,  who  return  replications  to  the  same,  if 
necessary. 

2545.  The  lords  appoint  a  day  for  the  trial,  and,  in  the  mean 
time,  the  commons  appoint  managers  to  prepare  evidence  and  con- 
duct the  proceedings.  The  witnesses  necessary  to  prove  the 
charges,  are  summoned  by  the  lords,  at  the  request  of  the  com- 
mons. The  accused  may  have  summonses  issued  for  the  attend- 
ance of  witnesses  on  his  behalf,  in  the  same  manner.  He  is  also 
entitled  to  be  fully  heard  in  defence  by  counsel. 

2546.  When  the  house  of  lords  is  sitting  as  a  court  of  impeach- 
ment, for  the  trial  of  a  peer  impeached  of  high  treason,  one  of 
them  is  appointed  by  the  crown,  on  the  address  of  the  house,  to 
preside  during  the  trial,  as  lord  high  steward.  On  other  occasions, 
the  chancellor,  or  speaker  for  the  time  being,  presides. 

2547.  The  trial  of  an  impeachment  has  usually  taken  place  in 
Westminster  Hall,  which  has  been  temporarily  fitted  up  for.  the 
purpose.  When  this  is  the  case,  the  lords  proceed  each  day,  in  a 
body,  from  their  own  house  to  the  place  of  trial,  where  they  remain 
whilst  the  trial  is  proceeding.  When  the  sitting  for  the  day  is 
brought  to  a  close,  they  return  in  the  same  manner.  If,  during  the 
progi-ess  of  the  trial,  any  question  arises,  which  it  is  necessary  to 
consider  and  decide,  the  lords  withdraw  for  that  purpose  to  their 
usual  place  of  sitting,  and  there  consider  and  debate  the  matter  in 
question,  in  the  same  manner  as  any  other  subject.  When  it  has 
come  to  a  decision,  it  returns  to  the  place  of  trial,  and  makes  the 
decision  known  by  its  presiding  officer. 

2548.  The  house  of  commons  prosecutes  an  impeachment  by  the 
agency  of  managers  previously  appointed  for  the  purpose  from 
among  their  own  members.  The  managers  exercise  the  ordinary 
functions  of  counsel,  and  open  the  case,  and  examine  witnesses  to 
sustain  the  charges,  in  the  same  manner  as  on  the  trial  of  an  in- 

1  May,  477. 


Part  IX.]  impeachment.  983 

dictment.  When  the  case  has  been  concluded,  on  the  part  of  the 
prosecution,  the  managers  for  the  commons  are  answered  by  the 
counsel  for  the  accused,  who  also  call  and  examine  witnesses  for 
the  defence,  if  they  think  proper,  according  to  the  usual  course  of 
criminal  proceedings.  "When  the  case  for  the  defence  is  closed,  the 
managers  have  the  right  to  reply.  The  house  of  commons  proceeds 
to  the  pkice  of  trial,  and  there  attends,  in  a  body,  each  day,  during 
the  trial,  as  a  committee  of  the  whole,  and  returns  to  its  house 
in  the  same  manner.  In  the  performance  of  their  several  duties, 
both  the  managers  for  the  commons,  and  the  counsel  for  the  ac- 
cused, are  subject  to  the  direction  and  supervision  of  the  court,  and 
are  bound  to  conform  to  the  rules  of  proceeding  which  are  observed 
in  other  judicial  tribunals.  The  managers  for  the  commons  are 
bound  to  confine  themselves  to  the  charges  contained  in  the  articles 
of  impeachment.^ 

2549.  When  the  cause  is  concluded  on  both  sides,  the  lords 
withdraw  to  their  own  house,  and  there  agree  upon  the  questions 
to  be  put,  in  order  to  determine  whether  the  accused  is  guUty  or 
not  guilty.  When  the  questions  are  agreed  upon,  which  may  not 
be  the  case  under  some  days,  the  lords  proceed  again  to  the  place 
of  trial,  and  there  in  the  presence  of  the  accused  and  of  the  house 
of  commons,  each  member  of  the  court,  beginning  with  the  lowest 
in  rank,  is  interrogated,  in  the  manner  agreed  upon,  by  the  lord 
high  steward.  The  peers  successively  rise  in  their  places,  as  the 
questions  are  put,  and,  standing  uncovered  and  laying  their  right 
hands  upon  their  breasts,  answer  "  guilty  "  or  "  not  guilty,"  as  the 
case  may  be,  "  upon  my  honor."  The  lord  high  steward,  or  other 
presiding  officer,  if  a  peer,  then  gives  his  own  opinion,  and  proceeds 
to  ascertain  the  result.  The  numbers,  being  cast  up  and  ascer- 
tained, are  stated  by  the  presiding  officer  to  the  lords,  and  then  the 
accused  is  acquainted  with  the  result.  The  lords  then  withcbaw  to 
their  house,  and  agree  to  a  resolution  accordingly,  which  is  entered 
on  their  journals.  If  the  accused  is  found  guilty,  they  also  agree 
upon  the  judgment  to  be  rendered  against  him. 

2550.  If  the  accused  is  declared  not  guilty,  the  impeachment  is 
dismissed ;  but,  if  guilty,  it  then  remains  for  the  commons  to 
lemand  judgment  against  him,  if  they  think  proper.  But  as  the 
commons  commence  a  prosecution  by  impeachment,  at  their  own 

J  On   tlie  trinl  of   Mr.  Hastings,  he  com-  house  resolved  that  certain  words  (those  ob- 

plained,  by  petition,  to  the  liouse  of  commons,  jected  to  by  Mr.  Hasting*)  ouglit  not  to  have 

that  matters  of  accusation  luul  been  added  to  been  spoken  by  Mr.  Rnrke,  one  of  the  man 

those  originally  laid  to  his  charge,  and  the  ngers.    Comm.  Jour.  XLIV.  298  320 


984  LEGISLATIVE   ASSEMBLIES.  [PaRT  IX. 

will  and  pleasure,  so  they  rpay  proceed  with  it  or  not,  or  suspend 
their  proceedings,  at  any  stage,  as  they  please.  It  is  in  their  power, 
therefore,  after  a  conviction,  to  refrain  from  demanding  judgment 
against  the  accused,  and  thus,  in  effect,  to  extend  a  pardon  to  him. 
Without  such  demand,  the  lords  cannot  proceed  to  pronounce  judg- 
ment. 

2551.  When  the  lords  have  agreed  upon  the  judgment  to  be  ren- 
dered, they  send  a  message  to  the  commons  to  acquaint  them,  that 
the  lords  are  ready  to  proceed  further  with  the  impeachment,  and 
to  render  judgment  against  the  accused,  if  the  commons  shall  see 
fit  to  demand  the  same.  The  commons  thereupon  attend,  with 
their  managers,  in  the  place  of  trial,  as  before,  at  the  time  appointed 
by  the  lords  for  the  purpose ;  and  the  accused,  being  called  to  the 
bar,  is  then  permitted  to  offer  reasons,  if  he  has  any,  in  arrest  of 
judgment.  When  aU  such  matters  have  been  heard  and  overruled, 
or  when  nothing  is  urged  in  arrest  of  judgment,  the  speaker  of  the 
commons  demands  judgment,  in  their  names,  and  in  the  names  of 
aU  the  commons  of  England,  against  the  accused ;  and  the  judg- 
ment is  thereupon  pronounced  by  the  lord  high  steward,  the  lord 
chancellor,  or  the  speaker  of  the  lords,  as  the  case  may  be.  The 
proper  measures  are  then  taken  by  the  lords  to  enforce  the  sentence. 
If  the  offender  is  sentenced  to  the  payment  of  a  fine,  he  is  ordered 
to  be  committed  to  the  tower  until  payment. 

2552.  When  an  impeachment  is  once  pending  in  the  house  of 
lords,  it  is  not  discontinued  by  a  prorogation,  or  even  by  a  dissolu- 
tion of  parliament,  but  continiie?,  from  session  to  session,  until  the 
proceedings  are  terminated.  Each  succeeding  house  of  commons 
may,  therefore,  take  up  and  proceed  with  an  impeachment,  which 
has  been  commenced  or  prosecuted  by  their  predecessors.  But 
this  is  not  the  case  with  the  preliminary  steps  in  the  house  of  com- 
mons, which  precede  an  impeachment,  which,  like  all  other  unfin- 
ished business,  are  discontinued  by  a  prorogation  or  dissolution, 
and  therefore  require  to  be  revived  in  a  succeeding  session.  To 
prevent  the  inconvenience  which  would  have  resulted  from  such  a 
discontinuance  in  1he  cases  of  Warren  Hastings  in  1786,  and  in 
that  of  Lord  Melville,  in  1805,  acts  were  passed  to  provide  that  the 
proceedings  depending  in  the  house  of  commons  upon  the  articles 
of  charge  in  those  cases  should  not  be  discontinued  by  any  proro- 
gation or  dissolution  of  parliament. 

2553.  The  royal  prerogative  of  pardon  extends  to  all  convictions 
on  impeachment,  as  well  as  indictment;  and,  therefore,  after  the 
judgment  of  the  lords  has  been  pronounced,  the  crown  may  re- 


Part  IX.]  impeachment.  985 

prieve  or  pardon  the  offender.  But  attempts  having  been  made  by 
the  crown,  to  screen  offenders  from  the  inquiry  and  justice  of  par- 
liament, by  the  intervention  of  the  prerogative  of  pardon,  the  com- 
mons, in  the  case  of  the  earl  of  Danby,  in  1679,  protested  against  a 
royal  pardon  being  pleaded  in  bar  of  an  impeachment,  and  by  the 
act  of  settlement,  12  and  13  W.  III.  c.  2,  it  was  declared,  "  that  no 
pardon  under  the  great  seal  of  England  shaU  be  pleadable  to  an 
impeachment  by  the  commons  in  parUament." 

2554.  In  this  country,  whatever  may  be  thought  of  the  question, 
whether  the  proceeding,  by  way  of  impeachment,  is  a  necessary 
incident  to  a  legislative  body  or  not,  it  is  a  question,  which  we 
have  no  occasion  to  decide  ;  inasmuch,  as  this  proceeding  is  a  mat- 
ter here  of  constitutional  provision ;  being  mentioned  and  estab- 
lished by  the  constitutions  of  the  United  States,  and  of  all  the 
States  in  the  Union.  The  provisions  on  this  subject  in  the  consti- 
tution of  the  United  States  prevail  most  extensively,  with  some 
differences  of  minor  importance,  in  the  several  States,  and  will  be 
taken  as  the  basis  of  the  remarks  which  follow  touching  impeach- 
ments in  this  country.  The  subject  will  be  concluded  by  a  short 
statement  of  the  practice  in  proceedings  of  this  sort.^ 

2555.  I.  The  subjects  of  this  proceeding  are,  in  general,  declared 
to  be  the  chief  executive  magistrate,  and  other  civil  officers.  Who 
are  civil  officers,  liable  to  this  process,  can  only  be  authoritatively 
settled  by  their  being  enumerated,  but  which  has  not  been  done,  by 
the  constitution  of  the  United  States;  under  which  it  has  only 
been  decided  by  the  senate,  sitting  as  a  court  of  impeachment,  that 
members  of  the  legislature  are  not  such  civil  officers.'^ 

2556.  II.  The  power  of  impeachment  is  expressly  conferred  by 
all  our  constitutions  upon  the  lower  or  more  popular  of  the  two 
branches  of  which  the  legislative  body  is  composed,  and  which, 
from  this  function,  is  sometimes  denominated  the  grand  inquest  of 
the  State ;  to  be  exercised,  not  like  a  grand-jury,  but  in  its  ordinary 
legislative  form  of  proceeding ;  and  to  be  determined  upon,  unless 
otherwise  specified,  which  is  the  case  in  some  of  the  constitutions, 
by  the  ordinary  major  vote.  This  power,  in  the  constitutions  of 
the  United  States,  and   of  the  greater  number  of  the   individual 

1  In  the  congress  of  the  United  States,  from  in  the  third  voUime  of  the  journals  of  the 

the  practice  of  which  this  summary  is  taken,  senate.     Besides  these,  there  have  been  cases 

four  trials  of  impeachment   have  occurred,  of  impeachment  in  individual  States,  as,  for 

namely,  those  of  William  Blount  in  1799;  of  example,  that  of  James  Prescott,  in  Massa- 

John  Piciiering  in  1803 ;  of  Samuel  Chase  in  chusetts. 

1805;  and  of  James  H.  Peck  in  1832.     The  »  J.  of  S.  III.  490. 
Uireo  first-named  cases  are  published  together 

83 


986  LEGISLATIVE  ASSEMBLIES.     _  [PART   IX. 

States,  is  conferred  directly,  and  in  the  most  appropriate  phraseol- 
ogy, upon  the  house  of  representatives ;  in  others,  notice  is  required 
to  be  previously  given,  and  an  opportunity  to  be  heard  in  his 
defence,  allowed  to  the  party  accused ;  in  others  a  greater  than  the 
ordinary  majority  is  required  to  sustain  articles  of  impeachment ; 
and  in  others  it  is  provided,  that  the  impeachment  of  an  offender 
shall  operate,  until  a  decision  of  it  in  his  favor,  to  suspend  him  from 
the  exercise  of  the  functions  of  his  ofHce. 

2557.    III.  The  charges  of  impeachment,  thus  agreed  upon,  are 
to  be  preferred  by  the  lower  house,  to  the  upper  or  senate,  as  this 
branch  is  called;  upon  which  is  conferred,  in  express  terms,  the 
power  to  try  all  impeachments  thus  preferred.     For  this  purpose, 
the  members  of  the  upper  branch,  who  may  take  then-  seats  therein, 
and  be  qualified  as  such  at  any  stage  of  the  proceedings  on  an  im- 
peachment, are  generally  required  to  be  under  an  oath  or  affirma- 
tion similar  to  that  taken  by  jurors  on  the  trial  of  an  indictment, 
well  and  truly  to  try  the  charge  or  charges,  embraced  in  the  articles ; 
and  it  is  no  objection  to  a  member's  sitting  or  acting  in  this  capacity, 
that  he  has  akeady  participated,  as  a  member  of  the  lower  house, 
in  agreeing  to  them.^     In  some  of  the  constitutions  it  is  provided, 
that  when  the  chief  executive  magistrate  shall  be  tried,  the  court 
of  impeachment  shall  be  presided  over  by  the  chief  or  other  presid- 
ing justice  of  the  supreme  court ;  in  that  of  Vermont  it  is  provided 
that  the  senate  sitting  as  a  court  of  impeachment,  shall  take  to  its 
assistance,  for  their   opinion  merely,  the  justices  of  the  supreme 
court ;  and  in  other  constitutions  it  is  provided  generally,  that  there 
shall  be  no  trial  of  an  impeachment  until  after  an  adjom-nment  of 
the  legislature. 

2558.  IV.  The  principle  of  unanimity,  which  distinguishes  trial 
by  jury,  does  not  prevail  in  the  trial  of  impeachment ;  the  votes  of  a 
majority  only  of  the  members  constituting  the  court,  unless  other- 
wise specified  in  the  particular  constitution,  being  necessary  to  a 
conviction.  In  the  constitution  of  the  United  States,  and  in  those 
of  the  greater  number  of  the  States,  it  is  expressly  provided,  that 
the  concurrence  of  two  thnds,  at  least,  of  the  members  present, 
shall  be  necessary  to  convict. 

2559.  V.  The  sentence,  in  cases  of  impeachment,  commonly  ex- 
tends only  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit,  under  the  particular  state 
or  government  in  which  the  proceeding  is  instituted  ;  and  either  or 

1  Hatsell,  IV.  ir7,"and  note  181;  J.  of  S.  III.  333,  369. 


Part  IX.]  impeachment.  987 

both  of  these  may  be  inflicted  in  any  given  case.^  A  conviction  on 
impeachment  is  usually  exempted  from  the  operation  of  the  ordi- 
nary pardoning  power. 

25G0.  VI.  It  is  generally  provided,  in  the  American  constitu- 
tions, that  the  party  convicted  on  an  impeachment  shall,  neverthe- 
less, "be  liable  and  subject  to  indictment,  trial,  judgment,  and 
punishment,  according  to  law,"  as  in  other  cases. 

2561.  VII.  An  impeachment  is  not  discontinued  or  dissolved  l^y 
an  adjournment  or  dissolution  of  the  legislature  in  which  it  is  pend- 
ing ;  but  may  be  brought  forward,  in  the  state  in  which  it  was  left, 
and  prosecuted  in  a  succeeding  legislature. 

2562.  VIII.  The  tribunal  before  which  an  impeachment  is  pre- 
ferred, may  take  such  order  as  it  thinks  proper  according  to  law,  for 
the  appearance  of  the  party  accused,  and  may  proceed  to  trial  in 
his  absence.2 

2563.  The  follo^^'^ng  is  a  summary  of  the  practice  in  this  respect 
of  the  tv\^o  houses  of  the  congress  of  the  United  States.  When 
an  officer  is  known  or  suspected  to  be  guilty  of  malversation  in 
office,  some  member  of  the  house  of  representatives  usually  brings 
fonvard  a  resolution  to  accuse  the  party,  or  for  the  appointment  of 
a  committee  to  consider  and  report  upon  the  charges  brought 
against  him.  The  latter  is  the  usual  course;  and  the  report  of  the 
committee  ordinarily  embraces,  if  adverse  to  the  party,  a  statement 
of  the  charges,  and  recommends  the  resolution  that  he  be  im- 
peached therefor.  K  the  resolution  is  adopted  by  the  house,  a 
committee  is  thereupon  appointed  to  impeach  the  party  at  the  bar 
of  the  senate ;  to  state  that  the  articles  against  him  will  be  exhib- 
ited in  due  time,  and  made  good  before  the  senate  ;  and  to  demand 
that  the  senate  take  order  for  the  appearance  of  the  party  to  answer 
to  the  impeachment. 

2564.  This  being  accordingly  done,  the  senate  signifies  its  wil- 
lingness to  take  such  order ;  and  articles  are  then  prepared  by  a 
committee,  under  the  direction  of  the  house  of  representatives ; 
which,  when  reported  to,  and  approved  by  the  house,  are  then  pre- 
sented in  the  hke  manner  to  the  senate ;  and  a  committee  of  man- 
agers is  appointed  to  conduct  the  impeachment.  When  the  articles 
are  thus  presented,  the  senate  issues  a  process  summoning  the  per- 
son accused  to  appear  before  it,  to  answer  the  articles.  The  pro- 
cess is  served  by  the  sergeant-at-arms  of  the  senate,  and  due  return 
is  made  thereof  under  oath. 

» J.  of  S.  III.  376.  2  J.  of  S.  m.  505,  506. 


988  LEGISLATIVE    ASSEMBLIES.  [PaRT  IX. 

2565.  The  articles  thus  exhibited  need  not,  and  do  not  in  fact, 
pursue  the  strict  form  and  accuracy  of  an  indictment.  They  are 
sometimes  quite  general  in  the  form  of  the  allegations ;  but  always 
contain,  or  ought  to  contain,  so  much  certainty  as  to  enable  the 
party  to  put  himself  upon  the  proper  defence,  and  also  in  case  of 
acquittal  to  avail  himself  of  it,  as  a  bar  to  another  impeachment. 
Additional  articles  may  be  exhibited,  especially,  as  is  commonly  the 
case,  if  the  right  to  do  so  has  been  reserved,  at  any  stage  of  the 
prosecution. 

2566.  "When  the  return  day  of  the  process  for  appearance  has 
arrived,  the  senate  resolves  itself  into  a  court  of  impeachment,  and 
the  senators  are  then,  if  not  before,  solemnly  sworn  or  affirmed  to 
do  impartial  justice  upon  the  impeachment,  according  to  the  con- 
stitution and  laws  of  the  United  States.  The  person  impeached  is 
then  called  to  appear  and  answer  the  articles.  If  he  does  not  ap- 
pear in  person,  or  by  attorney,  his  default  is  recorded,  and  the  sen- 
ate may  proceed,  ex  parte,  to  the  trial  of  the  impeachment.  If  the 
party  does  appear  in  person,  or  by  attorney,  his  appearance  is  re- 
corded. Counsel  are  permitted  to  appear,  and  to  be  heard  upon 
an  impeachment. 

2567.  When  the  party  appears,  he  is  entitled  to  be  furnished 
with  a  copy  of  the  articles,  and  time  is  allowed  him  to  prepare  his 
answer  thereto.  The  answer,  like  the  articles,  is  exempted  from 
the  necessity  of  observing  great  strictness  of  form.  The  party  may 
plead  that  he  is  not  guilty  as  to  part,  and  make  a  further  defence  as 
to  the  residue ;  or  he  may  in  a  few  words,  saving  all  exceptions, 
deny  the  whole  charge  or  charges ;  or  he  may  plead  specially  in 
justification  or  excuse  all  the  circumstances  attendant  upon  the 
case.  And  he  is  also  indulged  with  the  liberty  of  offering  argu- 
mentative reasons,  as  well  as  facts,  against  the  charges,  in  support, 
and  as  part,  of  his  answer,  to  repel  them.  It  is  usual  to  give  a  fuU 
and  particular  answer  separately  to  each  article  of  the  accusation. 

2568.  When  the  answer  is  prepared  and  giv^n  in,  the  next  regu- 
lar proceeding  is,  for  the  house  of  representatives  to  file  a  replica- 
tion to  the  answer  in  writing,  in  substance  denying  the  truth  and 
validity  of  the  defence  stated  in  the  answer,  and  averring  the  tru1h 
and  sufficiency  of  the  charges,  and  the  readiness  of  the  house  to 
prove  them,  at  such  convenient  time  and  place  as  shall  be  appoint- 
ed by  the  senate.  A  time  is  then  assigned  for  the  trial,  and  the 
senate  at  that  time,  or  before,  adjusts  the  preliminaries  and  other 
proceedings  proper  to  be  had,  before  and  at  the  trial,  by  fixed  regu- 
lations ;  which  are  made  known  to  the  house  of  representatives, 


Part  IX.]  impeacumext.  989 

and  to  the  party  accused.  On  the  day  appointed  for  the  trial,  the 
house  of  representatives  appears  at  the  bar  of  the  senate,  either  in 
a  body,  or  by  managers  selected  for  that  purpose,  to  proceed  with 
the  trial.  Process  to  compel  the  a1  tendance  of  witnesses  is  pre- 
viously issued,  at  the  request  of  either  party,  by  order  of  the  senate, 
and  at  the  time  and  place  appointed,  such  witnesses  are  bound  to 
appear  and  give  testimony. 

2569.  On  the  day  of  trial,  the  parties  being  ready,  the  managers 
to  conduct  the  prosecution  open  it  on  behalf  of  the  house  of  rep- 
resentatives, one  or  more  of  them  delivering  an  explanatory  speech, 
either  of  the  whole  charges,  or  of  one  or  more  of  them.  The  pro- 
ceedings are  then  conducted  substantially  as  they  are  upon  com- 
mon judicial  trials,  as  to  the  admission  or  rejection  of  testimony, 
the  examinalion  and  cross-examination  of  witnesses,  the  rules  of 
evidence,  and  the  legal  doctrines  as  to  crimes  and  misdemeanors. 
When  the  whole  evidence  has  been  gone  through,  and  the  parties 
upon  each  side  have  been  fully  heard,  the  senate  then  proceeds  to 
the  consideration  of  the  case.  If  any  debates  arise,  they  are  ordi- 
narily conducted  in  secret ;  if  none  arise,  or  after  they  are  ended,  a 
day  is  assigned  for  a  final  public  decision  by  yeas  and  nays  upon 
each  separate  charge  in  the  articles  of  impeachment. 

2570.  When  the  court  is  assembled  for  the  purpose  of  givin» 
judgment,  the  question  is  propounded  to  each  member  of  the  sen- 
ate by  name,  by  the  presiding  officer  of  the  court,  in  the  following 
manner,  upon  each  article,  the  same  being  first  read  by  the  sec- 
retary of  the  senate :  "  Mr. ,  how  say  you ;  is  the  respon- 
dent guilty,  or  not  guilty,  of  a  high  crime  and  misdemeanor,  as 

charged  in  the article  of  impeachment  ?  "     Whereupon  the 

member  rises  in  his  place,  and  answers  guilty  or  not  guilty,  as 
his  opinion  is.  If  upon  no  one  article  two  thirds  of  the  senate 
decide  that  the  party  is  guilty,  he  is  then  entitled  to  an  acquittal, 
and  is  declared  accordingly  to  be  acquitted.  If  he  is  convicted  of 
aH,  or  any  of  the .  articles,  the  senate  then  proceeds  to  fLx  and 
declare  the  proper  punishment.  The  pardoning  power  of  the  presi- 
dent does  not  extend  to  judgments  upon  impeachment ;  and  hence, 
when  once  pronounced,  they  become  absolute  and  irreversible.^ 

•  Story,  Commentaries  on  the  Constitution,  II.  §§  805,  806,  807,  808,  809. 

83  • 


990  LEGISLATIVE   ASSEMBLIES. 


In  concluding  the  foregoing  work  on   parliamentary  law   and 
practice,  the  author   may  be   allowed  to  suggest  that,  the  gkeat 

PURPOSE  OF  ALL  THE  RULES  AND  FORMS,  BY  WHICH  THE  BUSINESS  OF 
A  LEGISLATIVE  ASSEMBLY  IS  CONDUCTED,  WHETHER  CONSTITUTIONAL, 
LEGAL,  OR  PARLIAMENTARY,  IN  THEIR  ORIGIN,  IS  TO  SUBSERVE  THE 
WILL  OF  THE  ASSEMBLY,  RATHER  THAN  TO  RESTRAIN  IT  ;  TO  FACILI- 
TATE, AND  NOT  TO  OBSTRUCT,  THE  EXPRESSION  OF  ITS  DELIBERATE 
SENSE. 


APPENDIX. 


APPENDIX. 


OF  TEE   CONTINUITY   AND   PERMANENCE  OF  THE  SENATE  OF  THE  UNITED 

STATES. 

Mr.  Buchanan  rose  and  said  :  — 

An  old  senate  and  a  new  senate !  There  could  be  no  new  sen- 
ate. This  was  the  very  same  body,  constitutionally,  and  in  point 
of  law,  which  had  assembled  on  the  first  day  of  its  meeting,  in 
1789.  It  had  existed,  without  any  intermission,  from  that  day  until 
the  present  moment,  and  would  continue  to  exist  so  long  as  the 
government  should  endure.  It  was,  emphatically,  a  permanent  body. 
Its  rules  were  permanent,  and  were  not  adopted  from  congress 
to  congress,  like  those  of  the  house  of  representatives.  For  many 
years  after  the  commencement  of  the  government,  its  secretary  was 
a  permanent  officer,  though  our  rules  now  require  that  he  should  be 
elected  at  stated  intervals.  The  senate  always  had  a  president, 
and  there  were  always  two  thuxls  of  its  actual  members  in  exist- 
ence, and  generally  a  much  greater  number.  It  would  be  useless 
to  labor  this  question.  Every  writer,  without  exception,  who  had 
treated  on  the  subject,  had  declared  the  senate  to  be  a  permanent 
body.  It  never  dies ;  and  it  was  the  sheet-anchor  of  the  consti- 
tution, on  account  of  its  permanency.^ 


IL 

WRIT   FOR   THE   ELECTION   OF   THE   MEMBERS   OF  THE   HOUSE    OF 

COMMONS. 

The   Writ  to  the  Sheriff,  on  a  General  Election. 

George  the  Third,  by  the  grace  of  God,  of  the  United  Kingdom 
pf  Great  Britain  and  Ireland,  King,  Defender  of  the  Faith,  and  so 
forth.  —  To  the  Sherifi'  of  the  county  of  Oxford,  greeting.  Whereas 
by  the  advice  and  assent  of  our  council,  for  certain  arduous  and 

»  Cong.  Globe,  IX.  240. 

(993) 


994  APPENDIX. 

urgent  affairs  concerning   us,  the  state  and  defence  of  our  king- 
dom of  Great  Brivain  and  the  church,  we  have  ordered  a  certain 
parHament  to  be  holden  at  our  city  of  Westminster,  on  the  twenty- 
ninth  day  of  November  next  ensuing,  and  there  to  treat  and  have 
conference  with  the  prelates,  great  men,  and  peers  of  our  realm, 
We  command  and  sh-ictly  enjoin  you,  that  proclamation  being 
made   of  the  day  and  place  aforesaid,  in  your  next  county  court 
to  be  holden  after  the  receipt  of  this  our  writ,  two  knights  of  the 
most  fit  and  discreet  of  the  said  county,  girt  wilh  swords,  and  of 
the  university  ^  of  Oxford  two  burgesses,  and  of  every  city  of  that 
county  two  citizens,  and  of  every  borough  in  the  same  county  two 
burgesses  of  the  most  efficient  and  discreet,  freely  and  indifferently 
by  those  loho  at  such  proclamation  shall  be  present  according  to  the 
form  of  the  statues  in  that  case  made  and  provided,  you  cause  to  be 
elected;  and  the  names  of  those  knights,  citizens,  and  burgesses,  so 
to  be   elected   (whether  they  be    present  or  absent)   you  cause  to 
be  inserted  in  certain  indentures  to  be  thereupon  made  between 
vou  and  those  who  shall  be  present  at  such  election,  and  then  at  the 
day  and  place  aforesaid  you  cause  to  come  in  such  manner  that 
the  said  knights,  for  themselves  and  the  commonalty  of  the  same 
county,  and  the  said  citizens  and  burgesses  for  themselves  and  the 
commonalty  of  the  said  universities,  cities,  and  boroughs  respectively, 
may  have  from  them  full  and  sufficient  power  to  do  and  consent  to 
those  things  which  then  and  there  by  the  common  council  of  our 
said  kingdom,  (by  the  blessing  of  God,)  shall  happen  to  be  ordained 
upon   the   aforesaid   affairs,  so   that   for  want  of  such  power,  or 
through  an  improvident  election  of  the  knights,  citizens,  or  bur- 
gesses, the  aforesaid    affairs  may   in  nowise   remain   urihnished ; 
willing,  nevertheless,  that  7ieither  you  nor  any  other  sheriff  of  this  our 
said  kingdom  be  in  anywise  elected ;  ^  and  that  the  election  in  your 
full  county  so  made  distinctly  and  openly,  under  your  seal  and  the 
seals  of  those  who  shall  be  present  at  such  election,  you  do  certify 
to  us  in   our    chancery,  at  the   day  and   place   aforesaid  without 
delay,  remitting  to  us  one  part  of  the  aforcstiid  indentures  annexed 
to  these   presents,   together   with   this  writ     Witness  ourself  at 
Westminster,  the  first  day  of  October,  in  the  fourteenth  year  of  our 


reign. 


To  be  indorsed  when  returned. 


The  execution  of  this  writ  appears  in  certain  schedules  hereunto 

annexed. 

A.  B.  Sheriff. 

[By  the  statute  VII.  H.  4,  c.  15,  in  the  writs  of  the  Parliament 
to  be  made  hereafter,  this  clause  shall  be  put,    "  Et  electionen  tuan 

1  The  writs  to  the  shenlTnre  all  in  the  same  universities.     Douffl.  Hist.  Controv.  Elect.  450. 

form,  except  thnt  in  this  and  in  that  to  the  This  iilso  con-esponds  with  the  Latin  form.     1 

sheriff  of  C'uTn/jridfjeshire  there  is  a  clause  for  Eliz.  set  fortli  in  D'Ewfis,  .37. 

the  election  of  members  for  the  respective  ^  gee  Uoug.  Hist.  Controv.  Elect.  450. 


APPENDIX.  09 


in  plene  comitatu  tno  factaiii  distincti,  et  aperti!;  sub  sigillo  tiio,  et 
Bi'gillis  eorum  que  election!  illi  inter  fuerint  nobis  in  cancellaria 
nostra  ad  diem  et  locum  in  brevi  contentos  certifias  in  dilate."] 


III. 

ON   THE   LIABILITY   OF  RETURNING    OFFICERS. 

The  great  constitutional  principle  stated  in  the  text  was  first 
es1abli^hed  in  England,  at  the  commencement  of  the  last  ccniury, 
in  the  case  of  Ashley  v.  White,  reported  in  2  Lord  Raymond,  938; 
6  Modern  Rep.  4-5 ;  and  Brown's  Parliament  Cases,  49 ;  and  ^a  as 
afterwards  recognized  and  confirmed  in  Harman  v.  Tappenden, 
1  East,  555,  in  Drewry  v.  Coulton,  1  East,  563,  (note,)  and  in  other 
cases.  The  case  of  Ashby  v.  White  is  a  leading  case  in  English 
jurisprudence,  which  is  generally  referred  to,  not  only  for  the  j^ar- 
ticular  point  decided,  but  as  authority  for  the  great  principle,  that 
wherever  the  common  law  gives  a  right,  it  gives  at  the  same  time 
a  remedy  by  action.  The  case  is  also  interesting  on  account  of  the 
important  constitutional  principle  involved  in  the  question  which 
it  decides,  and  the  extraordinary  proceedings  to  which  it  subse- 
quently gave  rise  between  the  two  houses  of  parliament,  involving 
questions  of  still  greater  extent  and  importance.  The  case  is 
further  remarkable,  from  the  fact,  that  it  was  at  first  decided  against 
the  plaintilF  by  these  judges  against  the  chief  justice,  Sk  John 
Holt,  whose  opinion  was  finally  sustained,  and  the  judgment  of  his 
brethren  reversed,  by  the  house  of  lords,  on  a  writ  of  error.  This 
case  undoubtedly  establishes  the  law  in  this  country,  as  well  as  in 
England,  and  has  been  recognized  as  authority,  ])y  cases  in  Massa- 
chusetts, (Kilham  v.  Ward,  2  Mass.  Rep.  236  ;  Lincohi  v.  Hap- 
good,  11  Mass.  350;  Capen  v.  Foster,  12  Pickering,  Rep.  485) ;  by 
cases  in  New  Hampshire,  (Wheeler v.  Patterson,  1  N.  II.  Rep.  88) ; 
in  Connecticut,  (Swift  v.  Chamberlain,  3  Conn.  Rep.  537) ;  and  by 
cases  in  New  York,  (Jenkins  and  others  v.  Waldron,  11  John.  Rep. 
115) ;  and  probably  by  cases  in  other  States.  The  decisions  in  the 
first-named  State  extend  the  principle  of  the  liability  much  beyond 
the  case  of  Ashby  v.  White,  and  allow  the  action  to  be  maintained, 
even  where  there  is  no  ground  for  imputing  any  wilful,  intentional, 
or  corrupt  conduct  tQ  the  officers  managing  the  eleclion;  but  in 
this  respect,  the  jurisprudence  of  Massachusetts  has  not  been  fol- 
lowed or  sustained  by  the  courts  in  New  Hampshire,  or  New  York. 
In  the  ctse  of  Wheeler  v.  Patterson,  (1  N.  11.  Rep.  SS,)  ciiief 
justice  Richardson  in  giving  the  opinion  of  the  court,  reviews,  and 
completely  refutes  the  reasoning  of  the  supreme  court  of  Massa- 
chusetts, in  the  care  of  Lincoln  v.  Ilapgood,  (11  Mass.  Rep.  350,) 
in  which  it  was  held,  that  wilful  or  corrupt  misconduct   was  not 


996  APPENDIX. 

necessary  to  support  the  action.  The  doctrine  of  the  latter  case 
was  however  reaffirmed  in  the  later  case  of  Capen  v.  Foster,  (12 
Pick.  Rep.  485,)  in  a  very  ahlc  opinion  pronounced  by  the  present 
chief  justice,  not  on  the  ground  apparently  of  reason  or  principle, 
but  on  that  of  authority  merely.  Indeed,  unless  the  question  is 
considered  as  no  longer  an  open  one,  it  seems  to  be  entirely  impos- 
sible to  sustain  the  Massachusetts  decisions,  but  upon  the  anoma- 
lous and  exti-aordinary  ground,  that  a  municipal  officer,  acting  in  a 
judicial  capacity  at  an  election,  is  responsible  "in  damages  lor  an 
error  of  judgment;  a  principle  which  has  never  at  any  time  or  in 
any  country  been  applied  to  other  officers  of  a  judicial  or  (^uasi 
judicial  character. 


IV. 

ORIGIN   OF   THE   MAJORITY   PRINCIPLE. 

The  charter  of  the  colony  of  the  Massachusetts  Bay  being  that 
of  a  trading  company,  and  not  municipal  in  its  character,  th'";  offi- 
cers of  the  colony  were  originally  chosen  at  general  meetings  of 
the  whole  body  of  freemen ;  precisely  as  at  the  present  day,  the 
directors  of  a  business  corporation,  a  bank,  for  example,  are  chosen 
Dy  the  stockholders  at  a  general  meeting.  In  the  choice  of  assi  st- 
mts, who  were  to  be  eighteen  in  number,  at  these  meetings  of  the 
company,  or,  as  they  were  called,  courts  of  election,  the  practice 
seems  to  have  been  for  the  names  of  the  candidates  to  be  regularly 
moved  and  seconded,  and  put  to  the  question,  one  by  one,  in  the 
same  manner  with  all  other  motions.  This  was  then,  as  it  is  now, 
the  mode  of  proceeding  in  England,  in  the  election  of  the  speaker 
of  the  house  of  commons,  and  in  the  appointment  of  committees 
of  the  house,  when  they  are  not  chosen  by  ballot.  Probably,  also, 
it  was  the  usual  mode  of  proceeding  in  electing  the  officers  of  a 
private  corporation  or  company.  In  voting  upon  the  names  thus 
proposed,  it  was  ordered,  —  with  a  view,  doubtless,  to  secure  the 
independence  and  impartiality  of  the  electors,  —  that  the  freemen, 
instead  of  giving  an  affirmative  or  negative  voice  in  the  usual 
open  and  visible  manner,  should  give  their  suffiages  by  ballot,  and 
for  that  purpose  should  "use  Indian  corn  and  beans,  the  Indian 
corn  to  manifest  election,  the  beans  contrary."  The  names  of  the 
candidates  being  thus  moved,  and  voted  upoii,  each  by  itself,  it  fol- 
lowed, of  course,  that  no  person  could  be  elected  but  by  an  abso- 
lute majority. 

In  a  very  few  years,  however,  from  the  first  settlement  of  the 
country,  the  number  of  the  freemen  had  so  much  increased,  and 
they  had  so  widely  distributed  themselves  over  the  territory  of  the 
colony,  that  it  had  become  inconvenient  to  a  great  many  of  them 
tx)  attend  the  meetings  of  the  company,  on  account  of  their  dis- 


APPENDIX.  997 

tance  from  the  place  of  meeting.  In  order  to  obviate  this  incon- 
venience, a  mode  of  proceeding  was,  at  length,  established,  which 
enabled  those  of  the  freemen  who  did  not  wish,  or  found  it  im- 
praciicHblc,  to  attend  the  meetings,  to  participate  both  in  the 
nomination,  and  in  the  election  of  the  assistants,  as  they  had 
done  belorc. 

Previous  to  the  annual  meeting  for  election  held  in  Boston, 
meetings  were  held  in  tlie  several  towns,  at  which  the  freemen  put 
in  their  votes  in  distinct  papers,  or,  as  we  now  call  them,  ballots, 
for  such  persons  not  exceeding  twenty  in  number,  being  freemen 
and  resident,  whom  they  desired  to  have  chosen  for  magistrates  or 
assistants,  at  the  next  election.  These  votes  being  sent  to  Boston, 
a  convenient  time  before  the  election,  and  there  examined  by  the 
proper  authorities,  the  names  of  those  twenty-six  persons  who  had 
the  most  votes  were  ascertained,  and  they  were  declared  to  be  "the 
men  and  they  only,"  to  be  put  to  vote  at  the  election.  These 
names,  together  with  the  number  of  votes  given  for  each,  were 
then  communicated  to  the  freemen  of  the  several  towns,  as  the  per- 
sons nominated  for  election  as  magistrates  or  assistants. 

The  freemen  were  again  called  together  in  their  several  towns,  a 
short  time  before  the  holding  of  the  court  of  election,  and  such  of 
them  as  pleased  were  allowed  to  put  in  their  proxies  of  election, 
for  the  officers  then  to  be  elected,  including  twenty  assistants  to  be 
chosen  by  Indian  corn  out  of  the  twenty-six  persons  in  nomination. 
These  proxies  were  sealed  up,  with  the  name  of  the  person  voting, 
WTitlen  on  the  paper,  and  transmitted  to  Boston,  on  the  day  of 
.election ;  when  and  where  all  the  freemen  of  the  colony,  who  had 
not  voted  by  proxy,  were  required  to  appear,  and  bring  in  then- 
votes.  The  votes  thus  sent  by  proxy,  as  well  as  those  brought  in 
by  the  freemen,  in  person,  were  all  counted  together,  and  the  result 
of  the  election  determined  accordingly.  Those  eighteen  of  the 
twenty-six  nominated,  who  had  the  most  votes,  were  declared  the 
assistants. 

By  this  mode  of  proceeding,  it  will  be  perceived,  that  all  the 
freemen  of  the  colony  were  enabled  to  participate  in  the  nomina- 
tion of  the  candidates,  and  those  who  chose  to  do  so  in  the  elec- 
tion, for  assistants,  without  being  obliged  to  attend  the  court  of 
election,  in  person ;  and  that  the  assistants  were  elected  substan- 
tially in  the  same  manner  as  before,  namely,  by  a  nomination  at 
large,  and  an  affirmative  or  negative  put  upon  each  name.  The 
principle  of  the  absolute  majority,  as  distinguished  from  that  of  the 
plurality,  seems  thus  to  have  had  its  origin  and  become  established 
In  our  municipal  elections. 

84 


998  APPENDIX. 


V. 


RETURN   OF   A   WRIT   OF   ELECTION, 

Indenture  of  Return  for  a    County. 

This  indenture,  made  in  the  full  county  of  York,  holden  at  the 
Castle  of  York,  in  and  for  the  said  county,  on  Wednesday 
day  of  ,  in  the  year  of  the  reign  of  our  Sovereign  Lord 

George  the  Third,  etc. ;  and  in  the  year  of  our  Lord  ,  between 

A.  B.Esq.,  sheriff  of  the  said  county  of  the  one  part;  and  C.  D.  E. 
F.  etc.,  and  many  other  persons  of  the  county  aforesaid  and  electors 
of  knights  to  Parliament  for  the  said  county  of  the  other  part ; " 
witnesseth,  that  proclamation  being  made  by  the  said  sheriff,  by 
virtue  of  and  according  to  a  writ  of  our  sovereign  lord  the  king 
directed  to  the  said  sheriff  and  hereunto  annexed,  for  the  electing 
of  two  knights,  of  the  most  fit  and  discreet  of  the  said  county,  girt 
with  swords,  to  serve  in  a  certain  Parliament  to  be  holden  at  the 
city   of  Westminster,   on   the  day   of  next   ensuing. 

The  said  parties  io  these  presents,  together  with  the  major  part 
of  the  electors  for  the  county  aforesaid,  present,  in  the  full  county 
of  York  at  the  castle  of  York  aforesaid,  on  the  day  of  the  date 
hereof,  by  virtue  of  the  said  writ,  and  according  to  the  force  and 
effect  of  the  statutes  in  that  case  made  and  provided,  have,  in  the 
said  full  county  of  York  by  and  with  our  assent  and  consent,  freely 
and  indifferently  elected  and  chosen  t\vo  knights  the  most  fit  and  * 
discreet  of  the"  said  county  girt  with  swords,  to  wit,  Sir  G.  S., 
baronet,  and  H.  D.  of  etc.  Esq.,  to  be  knights  to  the  said  parliament, 
so  to  be  holden  at  the  day  and  place  in  that  behalf  hereinbefore 
mentioned  for  the  commonalty  of  the  county  of  York ;  giving  and 
granting  to  the  aforesaid  knights  full  and  sufficient  power  for  them- 
selves and  the  commonalty  of  the  same  county  to  do  and  consent 
to  those  things  which,  in  the  said  parliament,  by  the  common 
council  of  the  Idngdom  of  our  said  lord  the  king,  by  the  blessing  of 
God,  5>hall  happen  to  be  ordained  upon  the  affairs  in  the  said  writ 
specified.  In  witness  whereof,  the  parties  to  these  presents  have 
interchangeably  put  their  hands  and  seals,  the  day,  year,  and  place 
first  above  written. 

A.  B., 
C.  D., 
E.  R,  etc. 


999 


APPENDIX. 

VI. 

speaker's  warrant. 

I.    Copy  of  the   Warrant  issued  in  Duane's  Case.    J.  of  S.  III.  60. 

United  States,  | 

The  27ih  day  of  March,  1800,  \  ^^• 

Whereas  the  senate  of  the  United  States,  on  the  18ih  day  of 
March,  1800,  then  being  .n  j^es.-^ion  in  the  ciiy  of  Philadelphia,  did 
resolve  that  a  publication  in  the  Grneral  Advertiser,  or  Aurora,  a 
newspaper  printed  in  the  said  city  of  Philadelphia,  on  Wednesday, 
the  19th  day  of  February,  then  last  past,  contained  assertions  and 
pretended  information  respecting  the  senate,  and  committee  of  the 
senate,  and  their  proceedings,  which  were  false,  defamatory,  scan- 
dalous, and  malicious,  tending  to  defame  the  senale  of  the  United 
States,  and  to  bring  them  into  contempt  and  disrepute,  and  to 
excite  against  them  the  haired  of  the  good  people  of  the  United 
States ;  and  that  the  said  publication  was  a  high  breach  of  the 
privileges  of  the  house. 

And  whereas  the  senate  did  then  I'urther  resolve  and  order,  that 
the  said  William  Duane,  resident  in  the  said  cily,  and  editor  of 
said  newspaper,  should  aj^pear  at  the  bar  of  the  house,  on  Monday, 
the  24th  day  of  IVIarch,  instant,  that  he  might  then  have  o])por- 
tunity  to  make  any  proper  defence  for  his  conduct  in  publishing 
the  aforesaid  false,  defamatory,  scandalous,  and  malicious  assertions 
and  pretended  information. 

And  whereas  the  said  William  Duane  did  appear  on  said  day 
at  the  bar  of  the  house,  pursuant  to  said  order,  and  requesred  coun- 
sel ;  and  the  senate,  by  their  resolution  of  the  24th  day  of  March, 
instant, 

'Resolved,  That  William  Duane,  having  appeared  at  the  bar  of 
the  senate,  and  requested  to  be  heard  by  counsel  on  the  charge 
jrgainst  him  for  a  breach  of  privileges  of  the  senate,  he  be  allowed 
the  assistance  of  counsel  while  personally  attending  at  the  bar  of 
the  senate,  who  might  be  heard  in  denial  of  any  facts  charged 
against  said  Duane,  or  in  excuse  and  extenuation  of  his  olfence, 
and  that  the  said  William  Duane  should  attend  at  the  bar  of  the 
senate  on  Wednesday,  then  next,  at  twelve  o'clock, -of  which  the 
said  Duane  had  due  notice. 

And  whereas  said  William  Duane,  in  contempt  of  the  said  last- 
mentioned  order,  did  neglect  and  refuse  to  appear  at  the  bar  of  the 
said  senate,  at  the  time  specified  therein  ;  and  the  senate  of  the  Uni- 
ted States,  on  the  27th  day  of  March,  instant,  did  thereupon  resolve 
that  the  said  William  Duane  was  guilty  of  a  contempt  of  said  order 
and  of  the  senate,  and  that  for  said  contempt  he,  the  said  WdUam, 
should  be  taken  into  custody  of  the  sergeant-at-arms  attending  the 


1000  APPENDIX. 

senate,  to  be  kept  for  their  further  orders.  All  which  appears  by 
the  journals  of  the  senate  of  the  United  States,  now  in  session  in 
the  said  city  of  Philadelphia. 

These  are,  therefore,  to  require  you,  James  Mathers,  sergeant-at- 
arins  for  the  senate  of  the  United  States,  forthwith  to  take  into  your 
custody  the  body  of  the  said  William  Duane,  now  resident  in  the 
said  city  of  Philadelphia,  and  him  safely  to  keep,  subject  to  the 
further  order  of  the  senate ;  and  all  marshals,  and  deputy  marshals, 
and  civil  officers,  of  the  United  States,  and  every  other  person,  are 
hereby  required  to  be  aiding  and  assisting  to  you  in  the  execution 
thereof;  for  which  this  shall  be  your  sufficient  wan-ant. 

Given  under  my  hand,  this  27th  day  of  March,  1800. 

Thomas  Jefferson, 
President  of  the  Senate  of  the  United  States. 

2.  Copy  of  the   Warrant  issued  by  the   Speaker  of  the  House  of 

Commons  in  the  case  of  the  Sheriff  of  Middlesex.    May,  72. 

Whereas  the  house  of  commons  have  this  day  resolved  that  W. 
Evans,  Esq.,  and  J.  Whulton,  Esq.,  sherijEf  of  Middlesex,  having 
been  guilty  of  a  contempt  and  breach  of  the  privileges  of  this  house, 
be  committed  to  the  custody  of  the  sergeant-at-arms  attending  this 
house ;  these  are  therefore  to  require  you  to  take  into  your  custody 
the  bodies  of  the  said  W.  Evans  and  J.  Whulton,  and  them  safely 
to  keep  during  the  pleasure  of  this  house ;  for  which  this  shall  be 
your  sutficient  warrant. 

3.  Copy  of  Summons  for  Witnesses  in  the  House  of  Representatives 

of  the  United  States. 

By  authority  of  the  house  of  representatives  of  the  congress  of 
the  United  States  of  America. 

To  Sergeant-at-arms.      You   are   hereby   commanded, to 

summon  of  ,  to  be  and  appear  before  the  committee 

of  the  house  of  representatives  of  the  United  States, 
in  their  chamber,  in  the  capitol,  in  the  city  of  Washington,  on  the 
,  at  the  hour  of  ,  then  and  there  to  testify  touching 

matters  of  inquiry  committed  to  said  committee,  and  he  is  not  to 
depart  without  leave  of  said  committee. 

Herein  fail  not,  and  make  return  of  this  summons. 

Witness  my  hand,  and  the  seal  of  the  house  of 
representatives  of  the  United  States,  at  the  city 
of  Washington,  this  day  of 

Speaker. 
Attest  : 

Clerk. 


APPENDIX.  100] 


VII. 

THE   speaker's    PRAYER  DURING   THE   SESSION. 

It  had  been  the  custom  of  these  later  Protestant  parliaments  for 
the  speaker  to  compose  a  prayer,  to  be  read  by  him  every  morning 
during  the  session.  Accordingly,  the  present  speaker  made  and 
read  the  following:  — "  O  eternal  God,  Lord  of  heaven  and  earth, 
the  great  and  mighty  Counsellor,  we  tiiy  poor  servants,  assembled 
before  thee,  in  this  honorable  senate,  humbly  acknowledge  our  great 
and  manifold  sins  and  imperfections,  and  thereby  our  Uiiworthiness 
to  receive  any  grace  and  assistance  from  Thee :  yet,  most  merciful 
Father,  since^  by  thy  Providence,  we  are  called  from  all  parts  of  the 
land  to  tills  famous  council  of  parliament,  to  advise  of  those  things 
which  concern  thy  glory,  the  good  of  thy  church,  the  prosperity  of  our 
prince,  and  the  weal  of  her  people ;  we  most  entirely  beseech  thee, 
that  pardoning  all  our  sins  in  the  blood  of  thy  son  Jesus  Christ,  it 
would  please  thee,  by  the  brightness  of  thy  Spirit,  to  expel  dark- 
ness and  vanity  from  our  minds,  and  partiality  from  our  speeches ; 
and  grant  unto  us  such  wisdom  and  integrity  of  heart  as  becometh 
the  servants  of  Jesus  Christ,  the  subjects  of  a  gracious  prince,  and 
members  of  this  honorable  house.  Let  not  us,  O  Lord,  who  are 
met  together  for  the  public  good  of  the  whole  land,  be  more  care- 
less and  remiss  than  we  use  to  be  in  our  own  private  causes. 
Give  grace,  we  beseech  thee,  that  every  one  of  us  may  labor  to 
show  a  good  conscience  to  thy  majesty,  a  good  zeal  to  thy  word, 
and  a  loyal  heart  to  our  prince,  and  a  Christian  love  to  our  country 
and  commonwealth.  O  Lord,  so  unite  and  conjoin  the  hearts  of 
her  excellent  majesty  and  this  whole  assembly,  as  they  may  be  a 
threefold  cord,  not  easily  broken;  giving  strength  to  such  godly 
laws  as  be  already  enacted,  that  they  may  be  the  better  executed, 
and  enacting  sucli  as  are  further  requisite  for  the  bridling  of  the 
wicked,  and  the  encouragement  unto  the  godly  and  well-aflected 
subjects :  that  so  thy  great  blessing  may  be  continued  towards  us, 
and  thy  grievous  judgments  turned  from  us.  And  that  only  for 
Christ  Jesus'  sake,  our  most  glorious  and  only  mediator  and  advo- 
cate, to  whom  with  thy  blessed  majesty  and  the  Holy  Ghost,  be 
given  all  honor  and  praise,  power  and  dominion,  from  this  time  forth 
for  ever  more."     (Hans.  P.  H.  I.  808.) 

84* 


XC02  APPENDIX. 


VIII. 

BILL    PASSED   BY   THE    MISCOUNTING   OF   VOTES. 

Burnett,  (History  of  His  Own  Times,)  vol.  11.  p.  485,  (1680,)  re- 
lates  the  following  anecdote: — "The  former  parliament  had  passed 
a  very  strict  act  for  the  due  execution  of  the  habeas  corpus ;  which 
was  indeed  aU  they  did;  it  was  carried  by  an  odd  artifice  in  the 
house  of  lords.     Lord  Grey  and  lord  Norris  were  named  to  be  the 
tellers ;  lord  Norris,  being  a  man  subject  to  vapors,  was  not  at  all 
times  attentive  to  what  he  was  doing ;  so  a  very  fat  lord  coming  in, 
lord  Grey  counted  him  for  ten,  as  a  jest  at  first;  but  seeing  lord 
Norris  liad  not  observed  it,  he  went  on  with  this  misreckoning 
after  ;  so  it  was  reported  to  the  house  and  declared  that  they  who 
were  for  the  bill  were  the  majority,  though  it  indeed  went  on  the 
other  side  ;  and  by  this  means  the  bill  passed."     Speaker  Onslow's 
note  on  this  passage  is :  — "  See    Minute-Book  of  the  House  of 
Lords,  with  regard  to  this  bill,  and  compare  there  the  number  of 
lords  that  day  in  the  house  with  the  number  reported  to  be  in  the 
division,  which  agi-ees  with  this  story."     The  bill,  which  was  the 
subiect  of  this  anecdote,  passed  in  the  31  Charles  II.  of  which  it  is 
chap.  2,  and  is  entitled,  "  An  act  for  the  better  securing  the  liberty 
of  the  subject,  and  for  preventing  of  imprisonments  beyond  seas." 
This  statute  is  the  famous  habeas  corpus  act,  which,  says  Black- 
stone,  III.  135,  is  frequently  considered  as  another  ma^na  charta. 
Also,  IV.  438,  "  great  bulwark  of  the  constitution."     Lord  Mans- 
field, Pari.  Reg.  11.  168,  alluding  to  the  anecdote,  says:  — "Sup- 
pose, again,  the  tellers,  through  mistake  or  design,  had  misreported 
the  numbers,  would  you  consent  to  have  the  declared  sense  of  the 
house  set  aside  ?     I  remember  to  have  heard  a  matter  of  that  sort, 
upon  one   of  the  greatest  questions   ever  decided  in  this   house : 
Lord  Bradford,  being  a  remarkably  fat  man,  the  teller,  after  the 
question  was  carried,  said,  that  he  counted  him  as  ten,  by  which  he 
gained  the  victory.    It  is,  indeed,  more  probable,  that  he  might  have 
told  him  as  two ;  but,  in  either  event,  it  is  plain,  the  matter  was  not 
to  be  set  right  after  the  sense  of  the  house  was  once  regularly  de- 
clared."    This  last  remark  is  not  now  true;  it  is  quite  common  to 
correct  mistakes  in  a  count,  and,  if  made  necessary  by  such  correc- 
tion, to  alter  the  determination  of  the  house. 


APPENDIX.  1003 


IX. 

TAKING   OF  TIIE   YEAS   AND   NAYS. 

Attempts  have  been  recently  made,  some  of  w  hich  are  not  want- 
ing in  ingenuity,  to  facilitate  the  taking  of  a  question  in  this  man- 
ner by  mechanical  contrivances.  One  plan  proposed  to  provide 
each  member  at  his  seatwilh  two  handles,  like  those  of  a  door  bell, 
one  of  whic  h  he  was  to  pull  for  aye,  and  the  other  for  no.  These 
were  to  communicate  with  machinery  at  the  clerk's  table,  by  means 
of  which  it  would  be  seen  how  each  member  voted.  The  votes 
could  then  be  enumerated  and  declared.  This  invention  seems  to 
have  attracted  some  admiration  for  its  novelty  and  ingenuity,  but 
has  not  as  yet  been  anywhere  adopted.  The  method  of  taking 
the  yeas  and  nays,  which  has  long  been  practised  in  Massachusetts, 
probably  combines  all  the  advantages  which  can  be  derived  from 
any  kind  of  mechanical  invention. 

In  the  house  of  representatives  of  Massachusetts,  which  is  by 
far  the  most  numerous  of  all  the  legislative  bodies  in  this  country, 
the  mode  practised  in  taking  the  yeas  and  nays  is  the  following. 
The  names  of  the  members  being  printed  on  a  sheet,  the  clerk  calls 
them  in  their  order;  and,  as  each  one  answers,  he  places  a  figure  in 
pencil  expressing  the  number  of  the  answer,  at  the  right"  or  left  of 
the  name,  as  the  answer  is  yes  or  no ;  so  that  the  last  figure  on 
each  side  shows  the  number  of  the  answers  on  that  side,  and  the 
two  are  the  numbers  on  the  division;  thus,  at  the  left  hand  of  the 
name  of  the  first  member  that  answers  yes^  the  clerk  places  a  figure 
1 ;  at  the  right  hand  of  the  name  of  the  fu-st  member  that  answers 
wo,  he  also  places  a  figure  1 ;  the  second  member  that  answers  yes 
is  marked  2 ;  and  so  on  to  the  end ;  the  side  of  the  name,  on  which 
the  figure  is  placed,  denoting  whether  the  answer  is  yes  or  no,  and 
the  figure  denoting  the  number  of  the  answer  on  that  side.  The 
affirmatives  and  negatives  are  then  read  separately,  if  necessary, 
though  it  is  usually  omitted,  and  the  clerk  is  then  ready,  by  means 
of  the  last  figure  on  each  side,  to  give  the  result  to  the  speaker  to 
be  announced  to  the  house.  The  answers  are  afterwards  written 
out  at  length  on  the  fists,  —  the  names  recorded  when  that  is  re- 
quired in  the  journal, —  and  the  fists  themselves  pre^^erved  and 
bound  up  at  the  end  of  the  session.  By  this  mode  of  proceeding, 
which  is  at  the  same  time  the  most  expeditious  and  the  most  cer- 
tain to  be  correct,  much  valuable  lime  is  saved,  which  would  other- 
wise be  wasted  in  waiting  for  the  result  to  be  ascertained  by  the 
comparatively  slow  and  uncertain  method  of  counting. 


1004  APPENDIX. 


X. 


FREEDOM  OF  SPEECH  AND  DEBATE. 

The  doctrines  laid  down  by  Chief  Justice  Parsons,  in  the  case 
of  Coffin  V.  Coffin,  (Mass.  Rep.  IV.  1  to  36,)  seem  perfectly  conso- 
nant with  the  true  principles  of  parliamentary  law ;  but  the  appli- 
cation of  them  to  the  case  itself  has  always  appeared  to  me  very 
extraordinary,  and,  to  say  the  least,  of  very  doubtful  correctness. 
The  facts  were  these  :  By  the  constitution  of  Massachusetts,  as  it 
then  stood,  public  notaries  were  chosen,  for  the  several  counties,  by 
the  joint  ballot  of  the  two  branches  of  the  legislature.  At  the  June 
session,  in  1805,  one  of  the  members  of  the  house  of  representa- 
tives, as  a  preliminary  step  to  the  election  of  notaries,  submitted  a 
resolution  for  the  appointment  of  an  additional  notary  for  the 
county  of  Nantucket,  stating,  at  the  same  time,  the  facts  on  which 
he  founded  his  proposition.  The  defendant,  also  a  member,  rose  in 
his  place,  and  inquned  of  the  mover,  where  he  obtained  his  infor- 
mation of  the  facts  which  he  had  stated  to  the  house.  The  mover 
answered,  that  his  information  came  from  a  respectable  gentleman 
from  Nantucket.  The  resolution  was  then  adopted,  and  the  house 
proceeded  to  other  business.  The  defendant  afterwards,  and  before 
the  rising  of  the  house,  met  the  mover  of  the  resolution  in  one  of 
the  passage  ways  within  the  body  of  the  house,  and  inquired  of 
him  who  the  respectable  gentleman  was  from  whom  he  received 
his  information.  The  mover  then  pointed  out  the  plaintiff,  who 
was  sitting  without  the  bar,  and  said  that  he  was  the  gentleman  in 
question.  The  defendant,  thereupon,  uttered  the  slanderous  words 
upon  which  the  action  was  brought.  The  court  decided  that  his 
privilege  was  no  defence  to  the  action.  It  seems  difficult,  even 
upon  the  principles  advanced  by  the  court.,  to  conceive  of  a  case  in 
which  a  member  could  be  more  clearly  entitled  to  immunity  than 
this.  The  defendant  spoke  the  words,  not  in  debate,  it  is  true,  but 
within  the  house,  during  its  sitting,  to  a  brother  member,  within 
the  hearing  of  members  only,  and  in  reference  to  a  subject  before 
the  house  ;  for  although  the  resolution  had  passed,  yet  notaries 
had  not  been  elected,  and  the  resolution  might  have  been  rescinded 
at  any  time  before  the  election. 


XL 

EXTRACT   FROM  PRESIDENT  POLK'S   MESSAGE,   DECLINING   TO   FURNISH 

PAPERS. 

"  It  may  be  alleged,  that  the  power  of  impeachment  belongs  to 
the  house  of  representatives,  and  that  with  a  view  to  the  exercise 
of  this  power,  that  house  have  the  right  to  investigate  the  conduct 


APPENDIX. 


1005 


of  al]  public  officers  under  the  government  This  is  cheerfully  ad- 
mitted. Tn  such  a  case,  the  safety  of  the  republic  would  be  tlie 
supreme  law;  and  the  power  of  the  house,  in  the  pursuit  of  this 
object,  would  penetrate  into  the  most  secret  recesses  of  the  execu- 
tive department.  It  could  command  the  attendrmce  of  any  and 
every  agent  of  the  government,  and  compel  them  to  produce  all 
papers,  public  or  private,  official  or  unofficial,  and  to  testify  on  oath 
to  all  facts  within  their  knowledge.  But,  even  in  a  case  of  that 
kind,  they  would  adopt  all  wise  precautions  to  prevent  the  exposure 
of  all  such  matters,  the  publication  of  v/hich  might  injuriously 
affect  the  public  interest,  except  so  far  as  this  might  be  necessary  to 
accomplish  the  great  ends  of  public  justice.  If  the  house  of  repre- 
sentatives, as  the  grand  inquest  of  the  nation,  should  at  ai^  time 
have  reason  to  believe  that  there  has  been  malversation  in  office,  by 
an  improper  use  or  application  of  the  public  money  by  a  pu])lic 
officer,  and  should  think  proper  to  institute  an  inquiry  into  the 
matter,  all  the  archives  and  papers  of  the  executive  department, 
public  or  private,  would  be  subject  to  the  inspection  and  control  of 
a  committee  of  their  body,  and  every  facility  in  the  power  of  the 
executive  be  afforded  to  enable  them  to  prosecute  the  investiga- 
tion."    (J.  of  H.  29th  Cong.  1st  Sess.  693.) 


XII. 

DIVISION  OP  A   QUESTION. 

In  the  year  1770,  a  question  arose  in  the  house  of  commons, 
whether  an  individual  member  had  not  a  right  to  have  a  compli- 
cated motion  divided  into  its  several  parts,  and  a  question  put  sep- 
arately on  each,  on  his  mere  demand,  and  without  any  motion  or 
vote  for  that  purpose.  A  committee  of  the  whole  having  reported 
a  resolution,  containing  t^^o  propositions,  and  the  question  being 
stated  on  agreeing  to  the  resolution,  Sir  William  Meredith  ad- 
dressed the  house  in  opposition  to  the  resolution,  and  concluded  his 
speech  with  insisting  that  it  contained  a  complicated  question,  .and 
that  it  was  the  undoubted  right  of  any  one  member  to  have  it  sep- 
arated, before  any  question  could  be  put  upon  it.  On  this  question 
a  debate  took  place,  in  which  several  members  participated,  Mr. 
Dyson,  who  had  been  clerk  of  the  house,  taking  the  negative,  and 
Mr.  George  Grenville  the  affirmative  ;  and  the  speaker,  Sir  Fletcher 
Norton,  beinsr  called  on  for  his  opinion,  gave  it  in  the  negative. 
Sir  William  Meredith  thereupon  replitnl,  and  concluded  his  remarks 
by  saying,  that  he  should  take  the  sense  of  the  house  upon  the 
question ;  and,  accordingly,  he  subsequently  moved  the  following 
resolution  for  that  purpose,  namely,  "  that  it  is  the  rule  of  this 
house,  that  a  complicated  question,  which  prevents  any  member 
from  giving  his  free  assent  or  dissent  to  any  part  thereof,  ought,  if 
required,  to  be  divided."     This  question  was  debated  at  length, 


1006  APPENDIX. 

nnd  was  decided  in  the  negative,  on  a  division,  174  to  243.  The 
original  resokition  wos  then  divided  into  two  parts,  on  the  motion 
of  Lord  North,  and  the  question  ordered  to  be  put  separately  upon 
each  part.  Since  Ihis  decision,  it  has  no  longer  been  insisted  on 
in  either  branch,  that  a  complicated  question  could  be  divided  on 
the  suggestion  or  request  of  an  individual  member.  This  proceed- 
ing is  remarkable,  as  being  the  first  instance  which  I  have  met 
■udth,  in  the  English  parliamentary  debates,  of  a  proceeding  analo- 
gous to  the  modern  and  American  practice,  on  an  appeal  from  the 
chair.  (See  Comm.  Jour.  XXXII.  707,  710.)  These  proceedings, 
being  very  instructive  in  other  respects,  the  record  thereof  is  printed 
at  length  in  the  next  number  of  this  appendix. 


XIII. 

APPEAL  FROM   THE   SPEAKER'S   DECISION   IN   THE   HOUSE   OF   COMMONS. 

"  The  other  order  of  the  day  being  read,  Sir  Francis  Vincent  re- 
ported from  the  committee  of  the  whole  house,  to  whom  it  was 
referred  to  consider  further  the  state  of  the  nation,  the  resolution 
which  the  committee  had  directed  him  to  report  to  the  house, — 
which  he  read  in  his  place,  and  afterwards  delivered  in  at  the  clerk's 
table,  where  the  same  was  read,  and  is  as  follows,  namely  :  — 

"  Resolved,  That  it  is  the  opinion  of  this  committee,  that  this 
house,  in  the  exercise  of  its  judicature  in  matters  of  election,  is 
bound  to  judge  according  to  the  law  and  custom  of  parliament, 
which  is  part  thereof ;  and  that  the  judgment  of  this  house,  de- 
clared in  the  resolution  of  ihe  17th  day  of  February  last,  '  that 
John  Wilkes,  Esquire,  having  been,  in  this  session  of  parliament, 
expelled  this  house,  was,  and  is,  incapable  of  being  elected  a  mem- 
ber to  serve  in  this  present  parliament,'  was  agreeable  to  the  said 
law  of  the  land,  and  fully  authorized  by  the  law  and  custom  of  par- 
liament. 

"  The  said  resolution  being  read  a  second  time,  and  an  objection 
being  made,  that  the  said  resolution  contained  a  comphcaied  ques- 
tion, and  that  it  was  the  undoubted  right  of  any  one  member  of 
the  house  to  have  it  separated,  before  any  question  could  be  put 
upon  it,  Mr.  Speaker  was  called  upon  by  the  house,  to  state  what 
he  understood  to  be  the  order  of  proceeding  of  the  house  in  this 
respect;  and  Mr.  Speaker  accordingly  delivered  to  the  house  his 
opinion  thereupon.  And  a  member  of  the  house  having,  in  his 
speech,  made  some  observations  upon  what  had  been  said  by  Mi*. 
Speaker;  and  Mr.  Speaker  offering  his  sentiments  to  the  house,  in 
answer  to  what  had  been  observed  by  the  said  member;  exception 
was  taken  to  some  words  used  by  Mr.  Speaker,  in  such  answer ; 
which  words  being  taken  down  by  a  member  of  the  house,  were 
afterwards  copied  by  th'^  clerk  at  the  table,  and  are  as  followeth : 
"When  I  exoected  candid  treatment  from  that  member,  I  was  mis- 


APPENDIX.  1007 

taken ;  for  I  find  I  am  not  to  expect  candor  from  that  gentleman 
in  any  motions  he  is  to  make  to  the  chair." 

"And  the  said  words,  so  taken  down,  being  read  to  the  house,  Mr. 
Speaker  declared,  ihat  Ihose  were  not  the  words  which  he  had 
made  use  of;  but  fhat  they  were  as  followeth:  '  In  candor,  I  hoped 
he  would  have  inforiiied  me  of  the  motion  he  intended  to  make ; 
but  I  now  find,  from  wh;it  Ihat  member  has  said,  that  I  am  not  to 
expect  ihat  candid  treatment  from  him  ;  —  for  he  said  in  his  speech 
that,  from  this  time  forward,  he  will  have  no  communication 
with  the  clnir.'  And  Mr.  Speaker  declared,  he  did  not  mean  anv 
general  reilection  on  the  character  of  the  member.  And  afterwards 
Mr.  Speaker  said  :  '  What  I  said,  arose  out  of  what  I  understood 
the  member  to  have  said.  K  he  disclaimed  candor  with  the  chair, 
I  had  a  right  to  say  I  was  not  to  expect  candor  on  that  subject.  I 
did  not,  in  justice  I  ought  not,  to  have  made  a  general  reflection 
upon  the  member's  character;  but,  if  the  member  had  snid  what  I 
understood  he  said,  I  had  a  riglit  to  say  what  I  did.  I  can  make 
no  apology  for  what  I  said,  but  will  abide  the  sense  of  the  house.' 

"  Then  a  motion  being  made,  and  the  question  being  put,  That  the 
words  spoken  by  Mr.  Speaker,  from  the  chair,  are  disorderlv,  im- 
porting an  improper  reflection  on  a  member  of  this  house,  and  dan- 
gerous to  the  freedom  of  debate  in  this  house.  It  passed  in  the 
nega1  ive. 

^^  Ordered,  That  the  further  consideration  of  the  report  from  the 
commltlec  of  the  whole  house,  to  whom  it  was  referred  to  consider 
furl  her  of  the  state  of  the  nation,  be  adjourned  till  Monday  morn- 
ing next,  at  twelve  of  the  clock. 

"And  then  the  house  adjourned  till  Monday  morning  next,  ten  of 
the  clock. 

"  The  other  order  of  the  day  being  read,  the  house  resumed  the 
adjourned  consideration  of  the  report  from  the  committee  of  the 
whole  house,  to  whom  it  was  referred  to  consider  further  of  the 
state  of  the  nation.  And  a  motion  was  made,  and  the  question 
being  proposed,  That  it  is  the  rule  of  this  house,  that  a  complicated 
question  be  divided,  an  amendment  was  proposed  to  be  made  to 
the  question,  by  inserting  after  the  word  'question,'  the  words, 
'  which  prevents  any  member  from  giving  his  free  assent  or  dissent 
to  any  part  thereof,  ought,  if  requhed,  to.'  And  ihe  said  amend- 
ment was,  upon  the  question  put  thereupon,  agreed  to  by  the 
house.  Then  the  main  question  being  put,  That  it  is  the  rule  of 
this  house,  that  a  comi)licated  question,  which  prevents  any  mem- 
ber from  giving  his  free  assent  or  dissent  to  any  part  thereof,  ought, 
if  required,  to  be  divided,  —  the  house  divided.  The  yeas  went 
forth. 

«  TeUers  for  the  yeas,  ^I^  William  Mereditu,     )  ^ 

^      '  Mr.  Hampden,  /  ^.t. 

« TeUers  for  the  noes,  ^^^'  O^^^low,  .,3 

'  Sir  Charles  Whitwortii,  \ 

So  it  passed  in  the  negative." 


1008  APPENDIX. 

'•  Ordered,  That  the  said  resolution  be  divided  into  two  parts,  the 
first  part  ending  at  the  "word  '  thereof;'  and  the  question  for  agree- 
ing with  the  committee  therein,  be  put  upon  each  part  separately. 
And  the  question  being  accordingly  put,  to  agree  wdth  the  commit- 
tee in  the  first  part  of  the  said  resolution.  That  this  house,  in  the 
exercises  of  its  judicature  in  matters  of  election,  is  bound  to  judge 
according  to  the  law  of  the  land,  and  the  known  and  established 
law  and  custom  of  parliament,  which  is  part  thereof;  it  was  re- 
solved in  the  affirmative.  Then  a  motion  was  made,  and  the 
question  being  put,  to  agree  with  the  committee  in  the  second  part 
of  the  said  resolution,  that  the  judgment  of  this  house,  declared 
in  the  resolution  of  the  17th  day  of  February  last,  '  That  John 
Willces,  Esquire,  having  been,  in  this  session  of  parhament,  expelled 
this  house,  was,  and  is,  incapable  of  being  elected  a  member  to 
serve  in  this  present  parliament,'  was  agreeable  to  the  said  law  of 
the  land,  and  fully  authorized  by  the  law  and  custom  of  parlia- 
ment, the  house  divided.     The  noes  went  forth. 

«  Tellers  for  the  veas  ^^-   ^HARLES  Fox,  )  037 

ieUers  lor  the  yeas,  -^^^^  Burrell,  \  ^'^'• 

«  Tellers  for  the  noes  ^^^'  ^^i^^^^an  Townsend,     ^^g 

lellers  tor  tne  noes,  -^^^  Calcraft,  i  ^^^• 

So  it  was  resolved  in  the  affirmative. 

"And  then  the  house  adjourned  till  to-morrow  morning,  ten  of 
the  clock."     Comm.  Jour.  XXXII.  707,  710. 


XIV. 

APPOINTMENT   OF  COMMITTEES. 

Mr.  Speaker  Hunter,  in  his  valedictory  address  on  the  3d  March, 
1841,  in  answer  to  the  usual  vote  of  thanks,  said:  — 

"  To  administer  the  rules  fairly,  is  comparatively  an  easy  task ; 
but  there  is  great  difficulty  in  organizing  the  committees  of  the 
house  so  as  to  do  justice  to  all  parties.  As  much  in  deliberation 
depends  upon  the  statement  of  the  proposition  to  be  discussed,  so 
the  efficiency  of  this  body  depends  greatly  upon  the  constitution 
of  the  committees,  which  present  most  of  the  subjects  upon  which 
it  acts.  It  is,  therefore,  important  to  the  parties  and  the  country, 
that  the  power  of  proposing,  through  these  committees,  should  be 
fairly  and  rightly  bestowed.  To  ascertain  what  is  fair  in  the  dis- 
pensation of  this  power,  is  the  most  difficult  duty,  as  it  sLotild  be 
the  most  anxious  care,  of  a  speaker.  To  say  that  I  had  developed 
the  just  principles  of  a  just  organization,  would  be  to  claim  far 
more  than  I  deserve.  But  that  such  principles  may  be  established 
by  a  reference  to  the  position  of  parties,  and  the  natm-e  of  the 
questions  to  be  considered  >  I  do  not  doubt. 


APPENDIX.  1 009 

"  The  party  upon  which  it  naturally  devolves  to  propose  a  ques- 
tion, ought  to  have  the  power,  it  would  seem,  to  present  its  propo- 
sition in  the  shape  for  which  it  is  willing  to  be  responsible.  And, 
as  the  dillerent  parties  hold  the  atfirmative,  according  to  the  nature 
of  the  question,  so  ought  the  constitution  of  the  committees  to  be 
varied.  In  the  committees  conned ed  with  the  executive  depart- 
ments, it  would  seem  just  that  the  friends  of  the  existing  adminis- 
tration should  have  the  majority,  to  propose  the  measures  which 
emanate  originally  from  their  party,  and  for  which  they  are  mainly 
accountable.  In  committees  of  investigation,  it  is  equally  clear 
that  the  opposition,  who  hold  the  aihrmative,  should  have  the 
majority  and  the  power.  And  so,  upon  other  questions,  a  reference 
to  their  nature,  and  to  the  views  of  the  various  sections  of  our  con- 
federacy, will  generally  enable  a  speaker  to  approximate  to  just 
rules  in  constitutmg  the  committees  which  take  charge  of  these 
measures.  But,  in  aU  cases,  I  have  endeavored  to  guard  the  mi- 
nority upon  the  committee,  in  point  of  numbers  and  ability." 


XV. 

OF   GRAND    COMMITTEES   AND   COMMITTEES   OF   THE   WHOLE   HOUSE. 

The  appointment  of  a  few  members,  selected  from  the  whole 
body,  for  the  performance  of  some  particular  duty,  furnishes  so 
obvious  and  convenient  a  means  of  facilitating  the  transaction  of 
business,  in  a  legislative  body,  or  other  deliberative  assembly,  that 
it  would  be  strange  not  to  find  the  employment  of  committees  a 
common  practice  in  both  branches  of  parliament,  from  the  earliest 
period.  Accordingly,  in  the  most  ancient  of  the  journals  of  the 
commons,  which  are  now  extant,  and  as  early  as  the  year  1554, 
there  are  entries  of  the  appointment  of  committees  (Comm.  Jour. 
I.  35,  41) ;  and  it  scarcely  admits  of  doubt,  that  this  mode  of  pro- 
ceeding is  as  ancient,  at  least,  as  the  separation  of  the  commons 
from  the  fiords,  and  their  sitting  apart  as  distinct  branches  of  par- 
liament. 

The  reason  for  the  existence  of  those  committees,  which  are  now 
known  as  committees  of  the  whole  house,  is  not,  however,  equally 
obvious ;  and,  indeed,  if  there  never  had  been  any  other  ground  for 
the  use  of  committees,  than  the  increased  facility  for  the  transac- 
tion of  business,  resulting  from  the  employment  of  a  few  selected 
individuals,  in  preference  to  a  larger  number,  having  no  peculiar 
qualifications  for  the  duty  imposed  upon  them,  committees  of  the 
whole,  as  they  would  possess  no  advantages  in  the  way  ol  business 
over  the  same  members  sitting  as  a  house,  would  probably  have 
never  become  an  established  mode  of  parliamentary  procedure. 

The  origin  and  use  of  these  conunittees  must,  therefore,  be 
sought  in  some  other  source  than  the  mere  convenience  of  parlia- 

85 


1010  APPENDIX. 

mentary  procedure  ;  and,  by  recurring  to  the  history  of  the  period 
when  they  were  first  introduced,  it  will  be  found,  that  they  were 
the  otfspring  of  circumstances  of  a  dilFerent  character;  and  that 
they  were  invented,  not  to  facihtate  Ihe  passing  of  bills,  in  ihe 
ordinary  course  of  legislation,  but  to  afford  means  for  bringing  for- 
ward and  discussing  the  gi-eat  constilutional  questions  which  were 
agitated  in  the  parUaments  of  the  first  Stuarts. 

In  the  first  parliament  of  James,  which  met  on  the  19th  March, 
1603,  the  house  of  commons,  "  by  reason  of  more  charters  gi'anted 
by  his  majesty,  as  also  by  their  attendance  in  greater  multitudes," 
than  had  been  usual,  was  more  numerous  than  had  ever  before 
assembled ;  among  its  members,  were  many  of  the  most  distin- 
guished statesmen,  lawyers,  and  men  of  learning,  as  well  as  gentle- 
men of  weight  and  character,  in  the  kingdom  ;  and,  the  assembfing 
of  a  parliament,  convened  by  a  sovereign  wdio  united  in  his  person 
the  crowns  of  England  and  Scotland,  and  was  the  undisputed  heii 
of  the  throne,  was  in  itself  an  event  of  more  than  common  impor- 
tance and  interest  to  the  whole  people. 

In  an  assembly  of  the  size  and  character  of  this  house  of  com- 
mons, it  was  almost  a  thing  of  course,  that  committees  appointed 
for  the  consideration  of  important  and  weighty  matters,  should 
consist  of  as  many  members,  at  least,  as  could  act  with  efficiency  ; 
and,  where  the  principal  purpose  of  a  committee  was  to  bring  to- 
gether information  from  all  the  different  parts  of  the  kingdom,  with 
respect  to  the  subject  in  hand ;  or  where  the  matter  referred  was 
one,  in  reference  to  which  the  house  could  thereby  testify  their 
sense  of  its  weight  and  importance ;  the  selection  of  a  large  num- 
ber of  members  for  the  service  was  an  obvious  means  for  the 
accomplishment  of  the  object  in  view. 

It  appears,  accordingly,  from  the  journals  of  the  house  of  com- 
mons, that  several  of  the  committees  appointed  during  the  first 
session  of  this  parliament,  were  of  extraordinary  magnitude. 
Thus,  a  committee  appointed  on  the  fifth  day  of  the  session,  to 
consider  the  three  grievances  suggested  by  Sir  Edward  Montague, 
consisted  of  all  the  privy  councillors  who  were  members,  and  of 
fifty-seven  others  specially  named  (Comm.  Jour.  I.  151)»;  a  com- 
mittee to  confer  with  the  lords,  touching  the  union,  consisted  of 
one  hundred  members  specially  named  (lb.  172),  and,  being 
afterwards  directed  to  attend  the  king,  for  the  purpose  of  hear- 
ing him  explain  his  meaning  in  the  mutter  of  the  union  (lb.  179), 
was  enlarged  by  the  addition  of  forty-two  members  specially 
named,  with  liberty  to  any  member  of  the  house,  though  not 
named,  to  accompany  them  to  the  king  (lb.  180) ;  a  committee, 
to  consider  of  the  abuses  of  pm'veyors,  consisted  of  forty-seven 
members  specially  named  (lb.  151)  ;  a  committee  on  matters  of 
religion  was  appointed  of  twenty-nine  members,  by  name,  and  all 
the  privy  councillors  who  were  members  (li;.  172,  173).  Com- 
mittees of  this  character  were  commonly  designated  as  great,  or 
pand  committees  fib.  215). 


APPENDIX.  1011 

In  the  second  and  third  sessions  of  this  parliament,  committees 
appointed  to  con^^ide^  the  topics  above  adverted  to,  and  others  of  a 
similar  character,  —  such  as  the  abuses  of  purvoyors,  matters  of 
reli«fion,  and  grievances, —  also  consisted  of  large  numbers  of 
members,  and  were  known  as  the  great  or  grand  committees  for 
religion,  grievances,  etc. ;  but,  it  was  not  until  the  ihird  session, 
and  in  reference  to  a  subject  of  a  diffcront  character,  ihat  a  com- 
mittee was  first  appointed  of  the  whole  house. 

In  pursuance  of  an  act  passed  at  the  preceding  session,  an 
"  instrument  of  union  "  between  the  two  kingdoms  had  been  signed 
and  sealed  by  certain  commissioners  appointed  for  the  purpo-e. 
This  instrument  being  communicated  to  both  houses,  the  lords 
requested  a  conference  with  the  commons,  in  order  that  there  might 
be  some  further  proceeding  in  the  business,  and  appointed  a  com- 
mittee of  forty  to  conduct  the  conference  on  their  part.  The 
commons,  in  answer,  resolved  not  to  confer,  but  to  meet  the  com- 
mittee of  the  lords  with  a  committee  of  their  own  members,  to  the 
number  of  one  hundred  and  eleven,  to  hear  what  the  lords  should 
propound,  and  to  report  the  same  to  the  house  (Comm.  Jour.  I.  324). 
Shortly  alterwards,  the  subject  was  again  brought  forward  in  the 
house,  and  a  discussion  ensued  as  to  what  further  proceedings  should 
take  place;  and  a  motion  was  made,  that  the  instrument  of  union 
should  be  first  debated,  and  then  committed,  and  that  "  the  tchole 
house  (saving  the  commissioners)  should  be  of  the  committee ;^^  but 
the  house  acceded  to  the  motion,  only  so  far  as  to  resolve  that  the 
instrument  should  be  committed,  and  "  that  the  committee  named 
for  the  ineeiing  with  the  lords  should  be  read,  and  that  those  (with 
others  added)  should  stand  for  a  committee  in  this  business."  The 
committee  was  then  read,  and  enlarged  by  the  appointment  of  forty- 
two  members  by  name,  and  of  all  the  lawyers  of  the  house,  the 
burgesses  of  all  post  towns,  and  the  knights  and  burgesses  of  all 
the  northern  counties  (lb.  326).  Considering  the  size  of  the  com- 
mittee, as  acrually  constituted,  it  can  hardly  be  supposed,  that  the 
objection  to  a  committee  of  the  whole  house  had  any  referenee 
to  the  increased  number  of  which  the  committee  would  thereby 
be  made  to  consist. 

After  some  further  proceedings  between  the  two  houses,  a  bill 
was  presented  to  the  hous?,  by  the  speaker,  ready  drawn,  for  the 
continuance  and  preservation  of  the  union,  (Comm.  Jour.  I.  368,) 
which  was  read  a  first  and  second  time,  and  moved  to  be  commit- 
ted.  It  was  now  again  attempted,  and  with  better  success,  lo 
make  the  committee  of  the  whole  house;  for,  it  being  "  al/irmcd, 
that  if  Mr.  Speaker  ivere  absent^  the  whole  house  mi^ht  be  a  com- 
mittee" it  was  thereupon  "  thoug-ht  fit  to  commit  the  bill  to  the 
whole  house,  Mr.-  Speaker  only  excepted''''  (lb.  370,  371).  It  may 
be  conjectured,  from  the  terins,  in  which  this  order  is  entered  in 
the  journal,  that  the  reason,  why  the  moiion  for  a  committee  of 
the  whole  was  not  successful,  when  previously  made,  was  a  doubt 


1012  APPENDIX. 

in  the  minds  of  the  house,  as  to  the  regularity  of  such  a  proceed- 
insr. 

It  is  probable,  that  this  committee  sat,  like  other  great  commit- 
tees, in  the  house,  when  the  house  was  not  sitting ;  and  it  appears, 
from  an  entry  in  the  journal,  (Comm.  Jour.  I.  377,)  that  on  one 
occasion,  at  least,  the  committee  sat  in  the  court  of  wards,  while 
the  "  speaker,  with  the  officers,  and  sundry  members  of  the  house, 
being  assembled,  sat  in  the  house,  from  eight  o'clock  until  eleven ; 
and  then  did  arise  and  depart,  without  motion  made  or  bill 
read." 

The  bill  being  reported  by  the  committee,  and  amended  agree- 
ably to  their  report,  passed  the  house,  and  was  sent  to  the  lords. 
In  that  branch,  it  passed  with  amendments,  and  the  bill  and  amend- 
ments were  sent  to  the  house  for  their  concurrence  ( Comm.  Jour. 
I.  387).  The  amendments,  being  twice  read  in  the  commons,  were 
"  committed  to  the  great  committee,  named  upon  the  second  read- 
ing of  the  bill  itself  in  this  house:  And  moved,  that  Mr.  Speaker 
might  depart,  and  the  committee,  being  compounded  of  the  whole 
house,  and  now  together,  and  the  business  of  the  house  very  little, 
might  (for  saving  of  time)  presently  enter  into  consideration  of  their 
3harge ;  which,  after  some  dispute,  whether  it  were  fit  or  no,  being 
without  precedent,  seldom  moved,  and  carrying  with  it  no  decorum, 
in  respect  of  Mr.  Speaker's  ordinary  and  necessary  attendance  upon 
the  house  till  eleven  o'clock,  grew  to  a  question,  namely,  whether 
the  committee  should  now  sit,  or  in  the  afternoon,  and  resolved, 
upon  question,  they  should  meet  in  the  afternoon,  and  not  now" 
(lb.  387,  388).  It  appears,  from  these  proceedings,  that  the  com- 
mittee of  the  commons  on  this  important  bill  "of  hostile  laws," 
as  it  was  called,  was  the  first  committee,  which,  in  point  of  num- 
bers, embraced  the  whole  house,  the  speaker  excepted ;  but  it 
differed  from  modern  committees  of  the  whole,  inasmuch  as  it 
was  thought  necessary  to  exclude  the  speaker  expressly,  and  it  was 
not  considered  as  consistent  with  order  and  decorum,  for  the  com- 
mittee to  sit,  or,  in  other  words,  for  the  house  to  be  turned  into  a 
committee,  during  any  part  of  the  time  of  the  usual  sitting  of  the 
house.  It  was  not  until  the  next,  being  the  last,  session  of  this  par- 
liament, that  the  house  were  able  to  get  over  the  point  of  decorum, 
for  the  sake  of  convenience. 

At  the  beginning  of  this  session,  general  committees  (as  they 
were  called)  were  appointed  for  the  consideration  of  all  matters  of 
importance ;  the  form  being  usually,  in  the  first  place,  to  appoint 
certain  members  by  name,  then  to  add  to  them  certain  classes,  as, 
for  example,  the  privy  council,  or  the  lawyers,  and  lastly,  a  general 
clause,  as,  "any  of  the  house  to  be  admitted,"  or  "whosoever  will 
come  to  have  voice,"  including  the  residue  of  the  house.  One  of 
the  committees  of  this  session  was  a  committee  of  the  whole  on 
tenures  and  wardships,  which  was  directed  to  sit  every  other  day  in 
the  house,  to  begin   at  seven  or  eight  and  to  sit  till  half  an  hour 


APPENDIX.  1013 

after  nine  in  the  morning,  and  the  honse  to  sit  till  half  an  hour  after 
eleven.  This  committee  was  probably  the  first  that  ever  sat  in  the 
house,  during  the  time  assigned  for  the  sittiiis?  of  the  latler;  in  con- 
sequence, no  doubt,  of  its  being  found  convenient,  in  order  to  enable 
the  committee  to  linish  their  business  on  a  given  day,  to  continue 
the  sitting  on  that  day  until  after  the  time  a]ipointed  for  the  house 
to  sit;  for,  on  the  last  day  the  committee  sat,  it  appears  from  an 
entry  in  the  journal,  that  "  this  day  the  committee  for  tenures,  etc., 
sat  till  half  an  hour  after  eleven ;  the  speaker,  from  nine,  sitting  in 
the  clerk's  chair ;  the  clerk  standing  at  his  back;  and  Mr.  Recorder, 
the  moderator  of  the  committee,  sitting  on  a  stool  by  him"  (Comm. 
Jour.  1.414) ;  and,  from  the  fact,  that  business  was  transacted  in  the 
house  on  the  same  day,  it  is  certain  that  the  house  must  have  been 
resumed  when  the  committee  had  concluded  its  labors.  The  inno- 
vation thus  introduced  very  soon  after  became  an  established  usage. 
At  first,  the  practice  was  introduced  for  the  general  committees, 
which  usually  sat  in  the  afternoon,  to  meet  occasionally  in  the  morn- 
ing, and  to  sit  till  the  speaker  took  the  chair  (lb.  422) ;  at  length  it 
was  perceived,  that  any  of  the  committees  of  the  whole,  without 
impropriety,  but  greatly  to  the  convenience  of  the  house,  might  be 
directed  to  sit,  at  any  time,  during  the  sitting  of  the  house ;  the 
speaker  when  the  practice  first  began  retiring  from  the  house  to  the 
committee  chamber,  and  returning  and  resuming  the  chair,  but,  at 
last,  merely  sitting  down,  without  leaving  the  house,  and  again 
ascending  the  chair  whenever  it  was  necessary  or  proper  that  the 
house  should  be  resumed  (lb.  429).  During  the  residue  of  this 
session,  committees  of  the  whole  were  frequently  appointed,  sitting 
Bomeiimes  liice  other  committees  in  the  afternoon,  and  sometimes 
like  commiltees  of  the  whole,  in  more  modern  times,  during  the 
sitting  of  the  house.  The  practice  became  still  more  general  in  the 
parliaments  subsequently  called  by  James  and  his  successor;  and, 
in  the  lifth  of  the  latter  sovereign,  —  the  celebrated  long  parliament, 
—  committees  of  the  whole  became,  what  they  now  are,  a  part  of 
the  regular  and  established  system  of  parliamentary  procedure. 

In  the  foregoing  remarks,  the  history  of  the  introduction  and 
establishment  of  this  form  of  proceeding  has  been  traced.  It  re- 
mains now  to  be  seen  what  advantages,  if  any,  it  possessed  over 
the  ordinary  mode  ;  for,  except  that  it  furnishes  an  occasional  relief 
to  the  speaker,  and  that  members  are  allowed,  in  committee,  to 
speak  more  than  once  to  the  same  question,  it  is  difficult,  at  the 
present  day,  to  perceive  any  other  ditlerence  between  the  house, 
and  a  committee  of  the  whole  house,  than  that  the  speaker  presides 
in  the  former,  and  a  chairman  in  the  latter. 

The  appointment  of  large  committees,  which,  as  has  been  seen, 
was  quite  common,  if  it  did  not  commence,  in  the  first  parliament 
of  James  I.,  —  a  custom  originally  practised,  perhaps,  more  for  the 
purpose  of  testifying  the  interest  of  the  house  in  the  measure  or 
subject  referred,  than  with  a  view  to  a  more  efficient  action,  —  was 

85* 


1014  APPENDIX. 

very  soon  discovered  to  be  the  most  efficacious  means  of  accom 
plishing  the  purposes  which  the  great  parliamentary  leaders  of  the 
commons,  in  the  reigns  of  the  first  Stuarts,  had  in  view.  A  com- 
mittee, however  large,  was  still  but  a  committee ;  it  could  not  pro- 
ceed, indeed,  withovit  the  authority  of  the  house  ;  but,  once  ap- 
pointed and  authorized,  it  could  then  proceed,  even  in  matters  of 
the  highest  importance,  wdth  a  degree  of  freedom  and  independence 
wholly  unattainable  at  that  time,  consistently  with  the  forms  of 
proceeding  in  the  house. 

The  presiding  oiticer  of  the  house  was  the  speaker.  He  was 
elected,  indeed,  by  the  house ;  but  the  election  was  made  by  the 
voices,  and  not  by  ballot ;  the  nomination  always  came  from  some 
one  of  the  great  officers  of  State ;  and  the  speaker  elect,  if  not 
agreeable  to  the  king,  might  be  rejected  by  him.  It  could  hardly 
be  expected  that  this  officer,  deriving  his  honors,  in  the  first  in- 
stance, from  the  influence  of  the  sovereign,  and  looking  forward  to 
further  favors  from  the  same  source,  should  be  inclined,  or,  if  wil- 
ling, should  be  able,  to  hold  an  even  balance  between  royal  prerog- 
ative on  the  one  hand,  and  the  rights  of  the  people  on  the  other. 
We  accordingly  find  that  the  official  influence  of  the  speaker  was 
sometimes,  at  least,  exerted  in  favor  of  the  prerogative ;  he  consid- 
ered it  his  duty,  when  commanded  by  the  king,  to  adjourn  the 
house,  without  putting  a  question  (Comm.  Jour.  I.  375,  376) ;  he 
thought  it  not  beneath  his  dignity  to  go  to  the  king,  when  sent  for, 
to  inform  him  of  the  proceedings  of  the  house,  and  to  take  with 
him  "  a  Httle  note  of  the  clerk's  book,"  for  the  same  purpose  (lb. 
500)  ;  and  being,  ordinarily,  a  member  of  the  Idng's  privy  coun- 
cil, he  could  not  but  be  fully  acquainted  with  all  the  plans  and 
measures  of  the  court- party. 

The  clerk  of  the  house,  originally,  in  fact,  and  to  this  day,  in 
name,  the  under  clerk  of  the  parliament,  appointed  to  attend  on 
the  commons,  held  his  office,  not  by  the  election  of  the  house,  but 
by  a  patent  from  the  king,  for  his  life,  and  with  power  to  make,  and 
discharge  the  duties  of  his  office  by,  a  deputy.  Such  an  officer 
would  not  be  lilvely  to  withhold  the  records  and  papers  of  the 
house,  then  in  his  personal  custody,  and  not  kept  in  any  building 
or  apartment  belonging  to  the  house,  or  under  its  control,  from  the 
inspection  of  the  sovereign  or  his  council ;  and  it  is  matter  of  his- 
tory, that  the  clerk  of  the  house,  in  the  third  parliament  of  James 
I.,  by  the  king's  command,  attended  with  his  journal  book,  at  a 
meeting  of  the  council,  where  the  Idng,  with  his  own  hand,  tore 
out  the  record  of  the  famous  protestation  of  the  commons  concern- 
ing their  privileges,  which  the  house  had  solemnly  directed  to  be 
entered  in  the  journal,  there  to  remain  of  record.  (Hansard,  Park 
H.  1. 1361,  1362  ;  Comm.  Jom-.  I.  668.) 

The  sergeant-at-arms,  also,  was  an  officer  appointed  by  the  king, 
and  holding  his  office  at  the  king's  pleasure.  His  functions,  as  the 
executive  officer  of  the  house,  were  by  no  means  unimportant.     It 


APPENDIX.  lOlo 

was  a  part  of  his  duty  to  take  care  that  no  strangers  should  witness 
the  proceedings,  to  keep  the  doors  and  avenues  of  the  house  for 
the  free  access  and  departure  of  the  members,  to  serve  all  the  war- 
rants and  processes  of  the  house,  and  to  have  the  custody  of  all 
persons  an-ested  and  brought  before  the  house  by  its  order.  It  is 
not  probiible  Ihat  this  functionary  ever  had  it  in  his  power  to  exer- 
cise uiuch,  if  any,  iiillacnce  upon  the  proceedings  of  the  house; 
but,  as  an  officer  appointed  by  the  sovereign,  and  dependent  on 
him,  his  feelings  may  not  unreasonably  be  supposed  to  be  on  the 
side  of' the  crown,  rather  than  on  that  of  the  people. 

if  the  officers  of  the  house  were  thus,  to  a  gi-eaer  or  less  degree, 
exposed  to  the  influence  of  the  power  of  the  cro^\n,  and  therefore 
liable  to  become  subservient  to  those  by  whom  it  was  wielded,  the 
forms  of  i)roceediiig  were  not  less  unfriendly  to  a  free,  full,  and  in- 
dependent discussion  of  topics,  whic  h  might  be  distasteful  to  the 
sovereign.     It  was  in  the  power  of  the  individual  members  to  in- 
troduce such  topics  as  they  pleased,  and  to  submit  moiions  and 
questions  for  the  consideration  of  the  house  ;  but  it  was  the  usual, 
and  doubtless  considered  the  more  regular  course,  for  the  speaker 
himself  to  frame  the  question,  from  ihe  tmii  of  the  debate,  whether 
motions  were  made  or  not ;  and  thus  the  questions  submitted  to 
the  house,  were  greatly  in  the.  power  of  the  speaker,  and  of  those 
about  the  chair.     The  rule,  also,  that  no  member    should    speak 
more  than  once  to  the  same  question,  which,  as  a  rule  of  order,  was 
strictly  observed  in  the  house,  though  sufficient,  perhaps,  where  a 
subject  hid  been  so  matured,  that  nothing  remained  but  to  say  yes 
or  no  to  it,  was  not  by  any  means  favorable  to  those  discussions, 
which  were  necessary  to  mature  any  business  for  the  decision  of 
the  house.     A  third  circumstance,  connected  with  the  forms  of  pro- 
ceeding, was  the  manner  in  which  the  clerk  of  the  house  performed 
the  duties  of  his  office.     During  all  the  parliaments  of  James,  and 
the  first  three  of  Charles  L,  the  journals  contain  not  only  the  votes, 
orders,  and  resolutions  of  tlie  house,  and  the  reports  of  committees, 
but  also  short  notes  of  the  speeches  and  motions  of  the  members. 
This  practice  seems  to  have  been  pursued  by  the  clerk,  either  be- 
cause he  considered  it  a  part  of  his  official  duty,  or  because  it  was 
an  acceptable  service  to  those  from  whom  he  derived  his  appoint- 
ment;  bui,  as  appears  by  the  following  proceeding,  it  seems  never 
to  have  been  sanctioned  by  the  house.     In  the  third  parliament  of 
Charles  I.,  April  17,  16:28,  the  lords  having  sent  a  message  to  the 
commons,  requesting  that  ihe  clerk  might  attend  the  lords,  with  the 
journal  book  of  a  preceding  parliament,  touching  "something  then 
delivered   by    a   learned   member "    of    the  conmions,   relative    to 
a   certain   bill,   the   commons  made  answer,   "  that  tliere  was  no 
resolution    of   the    house,  in   the    case    mentioned ;    and  that  the 
entry  of  the  clerk,  of  particular  men's  speeches,  was  without  war- 
rant at  all  times,  and,  in  that  parliament,  by  order  of  the  house, 
rejected  and  left ;  and  therefore  not  thought  fit  to  be  sent  up  to 


1016  APPENDIX. 

their  lordships."  (Comm.  Jour.  I.  884.)  The  method  of  taking 
notes  and  making  entries,  as  practised  by  the  clerks  in  the  parlia- 
ments above  mentioned,  appears  to  have  been  introduced  with  the 
first  parliament  of  James ;  the  journals  of  the  commons  in  the 
reigns  of  Elizabeth  and  her  predecessors,  as  far  back  as  the  journals 
are  extant,  contain  only  minutes  of  the  things  done  and  passed  in 
parliament,  but  no  notes  of  what  was  said  or  proposed  by  any  of 
the  members  ;  the  new  method  continued  only  until  the  1hird  par- 
liament of  Charles,  in  which  the  commons  resolved,  that  the  enter- 
ing of  particular  men's  speeches,  was  wilhout  warrant  at  all  times ; 
and  it  appears  to  have  been  laid  aside  about  the  time  of  the  pass- 
ing of  that  resolution.  The  last  circumstance  to  be  mentioned, 
which  was  not  without  its  influence  upon  the  action  of  the  house, 
was  the  secrecy  with  which  all  its  proceedings  were  required  to  be 
conducted.  Strangers,  as  all  but  members  were  called,  were  care- 
fully excluded  from  the  sittings  ;  and  it  was  a  breach  of  privilege, 
then  and  long  afterwards,  punishable  with  great  severity,  for  any 
of  the  members  to  divulge  or  publish  an  account  of  what  took 
place  ^vithin  the  walls  of  the  house.  While,  therefore,  the  king  had 
all  the  knowledge  of  what  was  passing  in  the  house,  which  could 
be  derived  from  an  inspection  of  the  clerk's  books,  and  from  the 
oral  communications  of  the  speaker,. or  other  members  of  the  coun- 
cil, the  people  were  as  carefully  kept  in  ignorance  of  what  it  equally 
concerned  them  to  know. 

According  to  the  constitution  of  ordinary  committees,  and  the 
rules  of  proceeding,  by  which  they  were  governed,  none  of  these 
inconveniences  were  likely  to  result.  Committees  were  presided 
over  by  a  chairman  of  their  own  appointment ;  no  record  was  kept 
of  then-  proceedings  but  what  was  made  by  him ;  every  member 
had  full  liberty  to  speak  as  often  as  the  committee  might  please  to 
hear  him  ;  and  it  was  only  when  the  committee  came  to  make 
their  report,  that  their  proceedings  were  inscribed  on  the  journals 
of  the  house.  When,  therefore,  it  had  once  been  settled  that  the 
whole  house  could  be  of  a  committee,  it  was  an  obvious  expedient, 
whenever  the  occasion  demanded  a  degree  of  freedom  and  inde- 
pendence incompatible  with  the  ordinary  forms  of  proceeding,  to 
turn  the  house  at  once  into  a  committee.  It  accordingly  became 
the  practice  during  the  reign  of  James  I.  and  Charles  1.  for  the 
house  of  commons,  generally  at  the  commencement  of  each  session, 
to  appoint  committees  to  consider  of  all  the  great  subjects  of  inter- 
est, which  they  undertook  to  investigate  ;  which  committees,  from 
being  at  first  large  committees,  the  members  of  which  were  spe- 
cially named,  came  at  length  to  be  of  the  whole  house,  either  gen- 
erally named,  or  specially  named,  with  authority  to  all  members  of 
the  house,  who  chose  to  do  so,  to  attend  and  have  voices.  These 
committees  were  in  general  presided  over  by  the  popular  leaders ; 
they  had  authority  to  receive  petitions  and  complaints  from  all  the 
citizens  without  the  intervention  of  the  house ;  their  proceedings 


APPENDIX.  1017 

were  open  to  the  public,  or  with  closed  doors,  as  might  best  suit 
the  occjision  ;  all  papers  and  documents  presented  to  them  remained 
in  their  custody  ;  the  oliicers  of  the  house,  unless  specially  directed 
to  do  so,  did  not  attend  their  sittings;  they  sat  in  tiie  house  at 
such  times  as  were  not  appointed  lor  the  sitting  of  the  house  ;  or 
when  the  business  in  hand  required  them  to  sit,  during  the  time 
appointed  for  the  house  to  sit,  the  house  was  resolved  into  the 
conmiittee. 

Tlies;e  general  committees,  as  they  were  appointed,  from  time 
to  time,  bore  different  appellations,  according  to  the  subjects  re- 
ferred to  ihem;  but,  at  length,  those  that  were  appointed  for  the 
consideration  of  certain  subjects,  witiiin  the  peculiar  jurisdiction 
of  the  commons  to  investigate,  came  to  be  denominated  the  com- 
mittees for  religion,  for  grievances,  for  courts  of  justice,  and  for 
trade,  to  which  at  the  commencement  of  the  long  parliament,  was 
added  a  committee  for  Irish  atliiirs.  Tliese  were  committees  of  the 
whole  house,  which  sat  as  committees  in  the  afternoons,  when  the 
house  did  not  sit;  and,  when  occasion  required,  sat  during  the  sit- 
ting of  the  house,  as  committees  of  the  whole,  properly  so  called. 
Sometimes,  when  they  were  directed  by  the  house  to  sit  in  the 
afternoon,  the  speaker  was  also  directed  to  atiend,  either  at  the 
same  time,  or  after  some  little  interval,  when  the  business  of  the 
committee  might  be  expected  to  be  completed ;  in  order  to  take  the 
chak  and  make  a  house,  if  any  thing  should  occur  to  render  it 
necessary,  or  to  receive  the  report  of  the  committee,  when  they 
should  have  gone  through  the  subject  refen-ed  to  them. 

In  order  to  give  some  idea  of  the  advantages,  at  the  period  ad- 
verted to,  of  proceeding  in  the  investigation  of  corrviptions  and 
abuses,  by  committees,  rather  than  by  the  house  itself,  the  practice 
in  reference  to  the  preferring  of  petitions  deserves  specially  to  be 
mentioned.  In  consequence  of  the  danger  to  which  petitioners 
were  exposed,  who  gave  information  of  abuses  in  the  public  offices, 
or  of  corruption  of  the  great  officers  of  government,  petitions  were 
at  first  allowed  to  be  delivered,  without  having  any  names  attaciied 
to  them.  But  this  practice  was  found  to  be  attended  with  danger 
on  the  other  side ;  for,  if  petitions  thus  defivered  should  turn  out 
"  to  contain  libels  or  treasons,"  then,  "  not  knowing  from  whom 
they  were  received,  the  burden  might  lie  upon  the  house."  A 
middle  course  was  therefore  devised  ;  which  was,  that  the  name  of 
the  petitioner  should,  in  the  first  instance,  be  put  to  his  petition ; 
and  that  when  the  petition  had  been  read  and  allowed,  the  name 
of  the  petitioner  should  be  torn  oil';  so  that  no  man  should  know 
by  whom  it  had  been  preferred.  (Comm.  Joiu.  I,  465.)  By  this 
expedient,  all  danger,  to  the  house  and  the  members,  on  the  one 
hand,  and  to  petitioners,  on  the  other,  was  obviated. 

After  these  general  committees  had  thus  become  established,  as 
a  part  of  the  regular  parfiamentary  machmery,  it  became  the  prac- 
tice to  pass  orders  for  their  appointment,  at  the  commencement  of 


1018  APPENDIX. 

each  session,  as  standing  committees  of  the  house,  under  the  names 
of  the  grand  committees  for  religion,  grievances,  courts  of  justice, 
and  trade.  This  practice  continued,  —  though  from  the  time  of  the 
restoration,  the  committees  were  never  called  upon  to  sit,  —  until 
the  tirst  session  of  the  Reformed  Parliament  in  1833,  when,  the 
orders  for  their  appointment  not  being  renewed,  they  were  oj"  course 
laid  aside. 

K  any  further  proof  were  needed  of  the  great  advantages  which 
the  popular  party  derived  from  proceeding  by  means  of  commit- 
tees, during  the  reigns  of  James  I.  and  Charles  L,  it  may  be  found 
in  the  following  remarkable  passage  of  the  declaration  promulgated 
by  The  latter  immediately  after  the  dissolution  of  his  third  parlia- 
ment in  March,  1620  :  — 

"  We  are  not  ignorant  how  much  that  house "  (the  commons) 
"hath  of  late  years^  endeavored  to  extend,  their  privileges,  by  setting 
up  general  committees  for  religion,  for  courts  of  justice,  for  trade, 
and  the  Uke ;  a  course  never  heard  of  till  of  late :  so  as  where,  in 
former  times,  the  knights  and  burgesses  were  wont  to  communicate 
lo  the  house  such  business  as  they  brought  from  their  countries ; 
now,  there  are  so  many  chairs  erected,  to  make  inquiry  upon 
all  sorts  of  men,  where  complaints  of  all  sorts  are  entertained,  to 
the  msufFerable  disturbance  and  scandal  of  justice  and  govern- 
ment, which,  having  been  tolerated  awhOe  by  our  father,  and  our- 
self,  hath  daily  grown  to  more  and  more  height;  insomuch  that 
young  lawyers,  sitting  there,  take  upon  them  to  decry  the  opinion 
of  the  judges ;  and  some  have  not  doubted  to  maintain,  that  the 
resolutions  of  that  house  must  bind  the  judges,  a  thing  never  heard 
of  in  ages  past.  But,  in  this  last  assembly  of  parliament,  they 
have  taken  on  them  much  more  than  ever  before."  (Rushworth,  I. 
App.  7.) 


APPENDIX. 


1019 


XVL 


AMENDMENTS    BETWEEN   TUE   TWO   HOUSES. 

The  Act  for  preventing  Occasional  Conformity. 


The  commons 
agreement 
and  disagree- 
ment to  tlie 
amendments 
made  hi/  the 
lords  to  the 
bill  fur  pre- 
venting occa- 
sional confur- 
mitg,  loith  the 
commons   a- 
mendments  to 
the  lords  a- 
mendments. 


Agreed  to  bv 
the  commons. 


Disagreed  to 
by  the  com- 
mons. 

Disagreed  to 
by  the  com- 
mons 


TUE   BILL   AND    AMENDME.NTS. 


The  amendments  made 
by  the  lords  to  the  bill 
for  preventing  occasional 
contbrmit)'. 


Decemb.  2,  1702. 

As  nothing  is  more  contrary  to 
the  profession  of  the  Christian  reli- 
gion, and  particularly  to  the  doc- 
trine of  the  Church  of  England, 
than  persecution  for  conscience 
onlv ;  in  due  consideration  where- 
of, an  act  passed  in  the  first  year 
of  the  reign  of  the  late  king  Wil- 
liam and  queen  Mary,  entitled,  An 
act  for  exempting-  their  majesties^ 
Protestant  subjects,  dissenting- from 
the   Church  of  England  from  the 
Penalties  of  certain  laivs ;  which 
act  ought  inviolably  to   be   ob- 
served,  and    ease   given    to    all 
consciences     truly     scrupulous ; 
nevertheless,   whereas   the    laws 
do  provide  that  every  person  to 
be    admitted    into    any  office  or 
employment  should  be  conform- 
able to  the  church,  as  it  is  by 
law  established,  by  enacting,  that 
every  such  person,  so  to  be  ad- 
mitted, should  receive  the  sacra- 
ment of  the  Lord's  Supper,  ac- 
cording to  the  rites  and  usage  of 
the    Church    of    England;     yet 
several   persons   dissenting  from 
the  church,  as  it  is  by  law  estab- 
lished, do  jom  with  the  members 


Line    9.     After   IMary] 
add  [of  glorious  memory'}. 


L.  16.  Afier  [^scrupulous] 
add  [but] 

L.  17.  Leave  out  from 
[whereas]  to  [several]  in 
the  27th  line. 


1020 


APPENDIX. 


thereof  in  receiving  the  sacrament 
of  the  Lord's   Supper,  to  qualify 
Disagreed  to    themselves  to  have  and  enjoy  such 
by  the  com-    offices  and  employments,  and  do 
mons.  afterwards  resort  to  conventicles 

or  meetings  for  the  exercise  of 
religion  in  other  manner  than  ac- 
cording to  the  liturgy  and  prac- 
tice of  the  Church  of  England, 
which  is  contrary  to  the  intent  and 
meaning  of  the  laws  aheady  made. 
Be  it  tlierefore   enacted  by  the 
queen's  most  excellent  majesty, 
by  and  with  the  advice  and  con- 
sent of  the  lords    spiritual   and 
temporal,  and  commons  in  par- 
liament assembled,  and  by  autho- 
rity  of    the    same,   that  •  if    any 
person  or  persons  after  the  first 
day  of  March,  which  shall  be  in 
the  year  of  our  Lord,  one  thou- 
sand  seven   hundred    and    two, 
either  peers  or  commoners,  who 
have  or  shall  have  any  office  or 
offices,  civil  or  military,  or  receive 
any  pay,  salary,  fee,  or  wages,  by 
reason   of  any  patent   or   granf 
fi-om  her  majesty,  or  shall  have 
any  command  or  place  of  trust 
from  or   under   her   majesty,  or 
from  any  of  her  majesty's  prede- 
cessors, or  by  her  or  their  autho- 
rity, or  by  authority  derived  from 
her  or  them,  within  the  kingdom 
of  England,  dominion  of  Wales, 
or  town  of  Berwick  upon  Tweed, 
or  in   her  majesty's  navy,  or  in 
the  several  islands  of  Jersey  and 
Guernsey,  or  shall  be  admitted 
into  any  service  or  employment 
in    her    majesty's   household   or 
family;  or  if  any  mayor,  alder- 
man, recorder,  bailitV,  town  clerk, 
common   council-man,    or    other 
person  bearing  any  office  of  ma- 
gistracy or  place  of  trust,  or  other 
employment  relating  to  or  con- 
cerning the    government   of  the 
respective     cities,     corporations, 


L.  3.  Leave  out  [swcA] 


Disagreed  to 
by  the  com- 
mons. 


L.  41.  Leave  out  from 
[JamUij}  to  [shalQ  in 
tlie  tenth  line  on  the 
next  page. 


APPENDIX. 


1021 


the  commons. 


boroughs,  cinque-ports,  :xnd  their 
members,  and  other  port-towns 
within  the  kingdom  of  England, 
dominion  of  Wales,  and  town  of 
Berwick  upon  Tweed,  who  by 
the  laws  are  obliged  to  receive 
the  sacrament  of  the  Lord's  sup- 
per, according  to  the  rites  and 
usage  of  the  Church  of  England, 
shall  at  any  time  after  their  ad- 
mission into  their  respective  oIFi- 
ces  or  employments,  or  after 
having  such  grant  as  aforesaid, 
during  his  or  their  continuance 
in  such  otBce  or  offices,  employ- 
ment or  employments,  or  the 
enjoyment  of  any  profit  or  ad- 
Agrced  to  by  vantage  from  the  same,  shall 
*i  resort  to  or  be  present   at  any 

conventicle,  assembly,  or  meet- 
ing, under  color  or  pretence  of 
any  exercise  of  religion,  in  other 
manner  than  according  to  the  lit- 
urgy and  practice  of  the  Church  of 
England,  in  any  place  within  the 
kingdom  of  England,  dominion  of 
Wales,  and  town  of  Berwick  up- 
on Tweed,  at  which  conventicle, 
assembly,  or  meeting,  there  shall 
be  five  persons  or  more  assembled 
together,  over  and  besides  those  of 
the  same  household,  if  it  be  in 
any  house  where  there  is  a  family 
inhabiting,  or  if  it  be  in  an  house 
or  place  where  there  is  no  family 
inhabiting,  then  where  any  five 
persons  or  more  are  so  assembled, 
as  aforesaid,  shall  forfeit  the  sum 


L.  1 7.  Leave  out  IshalH 
and  read  \Jcnowingly  ana 
willingly.'] 


Agreed  to  by 
the  commons 
■with  tlie  amendments  following,  viz.: 

1.  After  the  word  [or]  add  [shall 
knowiiigh/  and  willingl;/  be  present.] 

After  the  word  lanij]  add  [such.] 

After  the  word  [meeling]  leave  out 
[where]  and  insert  [in  such  house  or 
place,  as  aforesaid,  although.] 

After  [liturgy]  leave  out  [is]  and 
insert  [he  there.] 

After  [used]  leave  out  [and  where] 
and  insert  [m  case.] 

86 


L.  38.  After  [aforesaid] 
add  [or  at  any  meeting 
ichere  her  liturgy  is  used,  and  where 
her  majesty  and  the  princess  Soj^hia  shall 
not  be  prayed  for  in  express  tvords,  ac- 
cording to  the  liturgy  of  the  Church  of 
England.] 

1.  To  which  amendments  of  the  com- 
mons (to  the  lords'  amendment)  aa  en- 
tered on  the  other  side,  the  lords  agreed, 
with  the  addition  following: 

2.  After  the  words  [prayed  for]  in 
the  commons  amendment,  add  [in  pur- 


1022 


APPENDIX. 


Disa<;r('cd  to 
by  the  coni- 
mous. 


Disagreed  to 
by  the  com- 
mons. 


Clause  [vl] 
agreed  to  by 
the  commons. 


of  one  hundred  pounds,  and  five 
pounds  for  every  day,  that  any 
such  person  or  persons  shall  con- 
tinue in  the  execution  of  such 
oifice  or  employment,  after  he  or 
they  shall  have  resorted  to  or  been 
present  at  any  such  conventicle, 
assembly,  or  meeting  as  aforesaid, 
to  be  recovered  by  him  or  Ihem 
that  shall  sue  for  the  same,  by  any 
action  of  debt,  bill,  plaint,  or  in- 
formation ;  in  any  of  her  ma- 
jesty's courts  at  Westminster, 
wherein  no  essoign,  protection, 
or  wager  of  law  shall  be  allowed, 
and  no  more  than  one  imparlance. 

And  be  it  further  enacted,  that 
every  person  convicted  in  any 
action  to  be  brought,  as  aforesaid, 
or  upon  any  information,  present- 
ment, or  indictment  in  any  of  her 
majesty's  courts  at  Westminster, 
or  at  the  assizes,  shall  be  disabled 
from  thenceforth  to  hold  such  of- 
fice or  offices,  employment  or  em- 
ployments, or  to  receive  any  profit 
or  advantage  by  reason  of  them, 
or  of  any  grant,  as  aforesaid, 
and  shall  be  adjudged  incapable 
to  bear  any  office  or  employment 
whatsoever,  within  the  kingdom 
of  England,  dominion  of  Wales, 
or  town  of  Berwick  upon  Tweed. 

Provid.'d  always,  and  be  it  fur- 
ther enacted  by  the  authority 
aforesaid,  that  if  any  person  or 
persons  who  shall  have  been  con- 
victed, as  aforesaid,  and  thereby 


L.  1.  Leave  out  ^One 
hundred  pounds,  and  Jive 
pounds  for  every  day  t/eat 
such  person  or  persons 
shall  continue  in  the  exe- 
cution of  such  office  or 
employment']  and  instead 
thereof  insert  \_twenty 
pounds,  to  be  dicided  into 
three  parts,  ivhereof  one 
third  part  to  the  queen, 
one  other  to  the  poor  of 
the  parish  where  the  of- 
fence sh(dl  he  committed, 
and  one  third  part  to  the 
informer.J 


Line  28.  Leave  out  from 
\_aforesaid']  to  the  end  of 
the  bill. 


And  add  the  clauses  A, 
B,  C,  D,  E. 

[A]  Provided  that  no 
person  shall  suffer  any 
punishment  for  any  of- 
fence committed  ayaiyist 
this  act,  unless  oath  be 
made  of  such  offence  be- 
fore somejudye  or  justice 
of  the  peace  {who  is  here- 
by empowered  and  rc- 
cjuired  to  take  the  said 
oath)  tvilhin  ten  days  af- 
ter the  said  offence  com- 
mitted, and  unless  the  said 


After  [majesty']  add  \jvhom  God  loiiy 
preserve,  Catlierine  the  Queen  Dowayer]. 

After  [Sophia]  add  [or  such  others  as 
shall  from  time  to  time  be  lawfully  ap- 
pointed to  be  prated  for]. 

After  [he]  add  [there^. 

2.  To  which  addition  of  the  lords 
(to  the  amendments  made  by  the  com- 
mons to  the  lord;*'  amendment)  as  en- 
tered on  the  other  side,  the  commons 
agreed. 


suance  of  an  act  passed  in  the  first 
year  of  kiny  William  and  queen  Mary, 
entided,  Ari  act  declaring  the  rights 
and  liberties  of  the  subject,  and  set- 
thng  the  succession  of  the  crown;  and 
the  act  passed  in  the  twelfth  and  thir- 
teenth of  king  William  the  Third,  enti- 
tled, An  act  for  the  further  limitiition 
of  the  crown,  and  l)etter  securing  the 
rights  and  liberties  of  the  subject.] 


APPENDIX. 


1023 


Clause  [iJ] 
disaj^rccd    to 
by   tliu  com- 
mons. 


Clause  [C] 
disagreed  to 
by  the  com- 
mons. 


Clause  [Z>] 
disagreed  to 
by  tlie  com- 
mons. 


made  incapable  to  hold  any  office 
or  employment,  shall,  al'.er  such 
couvicion,  conibrm  to  the  Church 
of  England  for  the  space  of  one 
year,  wiihout  having  been  pres- 
ent at  any  conventicle,  as.-embly, 
or  meeting,  as  aforesaid,  and  re- 
ceive the  sacrament  of  the  Lord's 
supper  at  least  three  times  in  the 
year;  every  such  person  or  per- 
sons shall  be  capable  of  a  grant 
of  any  office  or  employment,  or 
of  being  elected  into  or  holding 
of  any  the  offices  or  employments 
aforesaid. 

Provided  also,  and  be  it  en- 
acted, that  every  person  so  con- 
victed, and  afterwards  conforming 
in  manner,  as  aforesaid,  shall  at 
the  next  term  after  his  admission 
into  any  such  office  or  employ- 
ment, make  oath  in,  writing,  in 
any  of  her  majesty's  courts  at 
Westminster,  in  public  and  open 
coiut,  between  the  hours  of  nine 
of  the  clock  and  twelve  in  the 
forenoon,  or  at  the  next  quarter- 
sessions  for  that  couniy  or  place 
where  he  shall  reside,  that  he  has 
conformed  to  the  Church  of  Eng- 
land for  the  space  of  one  year 
before  such  his  admission,  with- 
out having  been  present  at  any 
conventicle,  assembly,  or  meeting, 
as  aforesaid,  and  that  he  has  re- 
ceived the  sacrament  of  the  Lord's 
supper  at  least  three  times  in  the 
year,  which  oath  shall  be  there 
enrolled  and  kept  uj^on  record. 

Provided  also,  and  be  it  further 
enacted  by  the  authority  afore- 
said, that  if  any  person  after  such 
his  admission,  as  aforesaid,  into 
any  office  or  employment,  shall 
a  second  lime  oti'end,  in  manner 
aforesaid,  and  shall  be  thereof 
lawfully  convicted,  he  shall  lor 
such    otfence    incm*   double    the 


offender  he  proxecxited  for 
tlie  same  within  three 
months  after  the  said 
offence  commilteil ;  nor 
shall  anji  person  he  con- 
victed for  any  such  •t)f- 
fence,  unless  upon  the 
oath  of  two  credihle  wit- 
nesses at  the  least. 

[BJ  Provided  always, 
and  be  it  enacted,  that 
from  and  afer  the  said 
Jirsl  day  of  March,  no 
I'rotestant  Dissenter  shall 
he  com])ellcd  or  compella- 
ble to  take,  serve,  hold,  or 
hear  any  office  or  place 
whatsoever,  for  the  taking, 
serving,  or  holding  ichere- 
ofhe  cannot  be  duly  (juali- 
fied  by  law,  tvithout  re- 
ceiving the  holy  saci'ament 
according  to  the  usage 
of  the  Church  of  Eng- 
land, and  also  making 
and  subscrihi)<g  the  <l.ecla- 
ralion  mentioiied  in  the 
statute,  made  25  Car.  2, 
enliiled.  An  act  for  pre- 
venting dangers  which 
may  happen  lioni  Popish 
recusants,  any  statute, 
law,  usage,  or  oiher  thing 
to  the  contrary  notwith- 
standing. 

[C]  Provided  never- 
theless, that  this  act  shall 
not  extend  to  the  univer- 
sity churches  in  the  uni- 
versities of  this  realm,  or 
either  of  them,  tvhen,  or 
at  such  times  as  any  ser- 
mon or  lecture  is  preach- 
ed or  read  in  the  same 
churches,  or  any  of  them, 
for,  or  as  the  public  uni- 
versity sermon  or  lecture, 
but  that  the  same  .^er^ 
mons  and  lectures  7nay 
he  preached  or  read,  in 
suck  sort  or  jnanner,  as 
the  same  have  been  here- 
tofore }>rcached  or  read, 
this  act,  or  any  thing  there 
in  contained  to  the  con- 
trary, in  anywise  notwith- 
standing. 


1024 


APPENDIX. 


Clause  [E] 
disagreed  to 
by  the  coui- 
mons. 


penalties  before  mentioned,  to  be 
recovered  in  manner,  as  aforesaid, 
and  shall  forfeit  such  office  or 
employment,  and  shall  not  be 
capable  of  having  any  office  or 
employment,  until  he  shall  have 
conformed  for  the  space  of  three 
years,  in  manner  aforesaid,  where- 
of oath  shall  be  made  in  writing 
in  one  of  her  majestie's  courts  at 
Westminster,  or  at  the  quarter- 
sessions  of  the  county  where  he 
resides. 


[U]  Provided^  that  no 
person  shall  incur  any  the 
penalties  in  this  act,  by 
resorting  to,  or  being  pre- 
sent at  the  religious  exer- 
cises used  in  the  Dutch 
and  French  languages  in 
churches  established  in 
this  realm  in  the  reigns 
of  king  Edward  the  Sixth, 
or  of  queen  P21iz:ibeth,  or 
of  any  other  king  or  queen 
of  (his  realm. 

[E]  Provided  always, 
and  be  it  enacted  by  the 


authority  aforesaid,  that 
nothing  in  this  act  shall 
extend,  or  be  construed  to  extend  to  any  governor  or  governors  of  any  hospital  or  hos- 
pitals, or  to  any  assistants  of  any  corporation  or  corporations,  workhouse  or  work- 
houses, constituted,  erected,  or  employed  for  the  relief,  and  setting  of  the  poor  on  work, 
and  for  punishing  of  vagrants  and  beggars;  all  lohich  said  persons,  and  every  of  them, 
shall  be,  and  are  hereby  exempted  from  all  the  penalties  mentioned  in  this  act,  and  are 
hereby  adjudged  and  declared  not  to  be  subject  or  liable  to  any  of  the  penalties  or  for- 
feitures mentioned  in  one  act  of  parliament  made  in  the  twenty-fifth  year  of  the  reign 
of  king  Charles  the  Second,  For  preventing  dangers  which  may  happen  from  Popish 
recusants,  for  or  by  reason  of  any  of  the  aforesaid  offices  or  employments. 


INDEX. 

86*  (1026) 


INDEX. 


[The  figtires  refer  to  the  numbers  of  the  paragraphs.) 


ABSENCE, 

temporary,  as  affecting  residence,  73. 

eligibility,  83. 
leave  of,  267. 
ABJURATION.    See  Oath. 
ACCOUNTS, 

return  of,  to  parliament,  909,  1048. 
congress,  928. 
ACTS  OF  PARLIAMENT.    See  Bills. 
ACTION  ON  THE  CASE, 

by  elector,  for  being  prevented  from  voting,  90,  139.     Appendix  IIL 
ADDRESS, 

definition  of,  802. 

in  answer  to  royal  speech,  891,  899,  2030. 

message,  892. 
on  being  informed  of  ari-est  of  member,  894. 
to  executive,  897. 
subjects  of,  900. 

of  parliament,  joint,  ceremonies  at,  901. 
separate,    "  "   902. 

king's  answer  to,  906. 
to  the  crown,  to  obtain  returns,  909 

motions  for,  911. 
to  introduce  subject  of  bill,  2064. 
ADJOURNiAIENT, 

number  requisite  for,  244,  254,  258,  361,  368,  503,  509,  516,  625. 
of  the  debate,  motion  for,  1383,  1395. 
motion  for,  1390,  1518,  1521. 

cannot  be  amended,  1523. 

effect  of  decision  of,  on  main  question,  1589,  1625. 
when  may  be  made  without  motion,  1306. 
effect  of,  514,  1543,  1590. 
AGE, 

as  a  qualification  of''  member,  61,  70.' 

(1027/ 


1028  INDEX. 

ALIENS, 

not  allowed  to  vote,  24,  32. 

not  eligible  to  ollice,  56. 
ALLEGIANCE.  See  Oath. 
AMENDMENT, 

motions  lor,  1302,  1444. 

rules  respecting,  1318. 

may  be  amended,  1454,  1523. 

■when  cannot  be  introduced  by  a  speech,  1593- 

meaning  of,  1302. 

forms  and  rules  of,  1304,  1437. 

of  an  amendment,  1306,  1333. 

inconsistency  of,  1309,  1311,  1363. 

may  be  withdra'svn  or  modified,  1310. 

as  to  substance,  1311. 

to  defeat  motion,  1315,  1438. 

as  to  form,  1322. 

by  leaving  out  words,  1323,  1343. 

as  affecting  main  question,  1331,  1588,  1628. 

by  inserting  words,  1332. 

and  leaving  out  words,  1335,  1353,  1439. 

by  dividing  motion,  1342. 

by  filling  blanks,  1354. 

by  addition,  transposition,  etc.,  1358. 

what,  may  be  made  without  vote,  1361. 

by  turning  private  into  public  bill,  1368. 

which  coheres  to  principal  amendment,  2401. 

improper  adoption  or  rejection  of,  2404. 
APPEAL, 

from  decision  of  presiding  officer,  1460,  1464.     See  Appendix  "XTTT. 
AKREST, 

members  exempt  from,  551,  569,  573,  615,  894. 
servants  of,  where  exempt  from,  576. 
how  discliarged  from,  585. 

on  civil  process,  not  a  disqualification  for  election,  696. 

witnesses  exempt  from,  997. 
ATHEISM, 

as  a  disqualification  for  membership,  80. 
ATTACHiMENT, 

estates  of  members  exempt  from,  558,  569,  575. 
ATTAINDER, 

bills  of,  759,  702,  764,  1038,  1060. 
ATTORNEY-GENERAL, 

may  be  directed  to  institute  prosecutions,  1052. 

not  legal  counsellor  to  U.  S.  House  of  Representatives,  1066. 

BALLOT, 

election  by,  94. 
definition  of,  103. 
manner  of  voting  by,  103. 


INDEX. 


1029 


BALLOT  —  continued 

may  contain  how  many  names,  104,  107. 
when  rejected  for  uncertainty,  104. 

on  account  of  fraud,  106. 
■when  to  contain  desirrnation  of  office,  105,  107. 
deposited  in  wrong  box,  107. 
•   material  and  receptacle  of,  109. 
must  dearly  designate  person  voted  for,  110. 
additions  or  iiiles  on,  disregarded.  111. 
abbreviations  and  initials  on,  112. 
name  on,  misspelled  or  unlike  true  name,  113. 
blank,  114. 
•wrong  name  on,  171. 

containing  names  of  persons  eligible  and  ineligible,  175. 
distinguishing  feature  of  vote  by,  94,  179. 
voter  not  compellable  to  disclose,  199. 
BAR, 

meaning  of,  355. 
BILLS, 

kinds  of,  753. 

public,  754,  757,  1041,  2053. 

by  whom  prepared,  2114. 
legislative,  754. 
judicial,  754,  759,  2407. 
mixed,  755. 

proceedings  on,  as  affected  by  nature  of,  756. 
for  a  debt,  759. 
of  attainder,  759,  762,  764. 
of  nains  and  penalties,  759,  767. 
disqualifying  and  disabling,  759. 
royal  assent  to,  447,  888. 
hearing  of  parties  on,  1031. 

new  and  different  question  on  each  stage  of,  1591. 
parties  named  in,  excluded  from  voting  thereon,  1846. 
pecuniary  interest  in,  as  disqualifying  from  voting  on,  1846. 
reported  by  committee,  1948. 
passing  of,  204G,  2228. 

ancient  practice  respecting,  2048. 

communications  between  the  two  hpuses  relative  to,  2285,  235a 

miscellaneous  matters  connected  with,  2391. 

mistakes  with  regard  to,  2391. 

in  this  country,  constitutional  prov'isions  respecting,  2405. 

formalities  in,  2406. 
by  whom  originated,  2047. 
definition  of,  2055,  2172. 
form  of,  2057,  2113. 

changed,  2163. 
must  be  introduced  by  authority  of  house,  2058. 

how,  2081. 
■ubject  of,  may  be  introduced  by  petition,  20G3. 


1030  INDEX. 

BILLS  —  continued. 

subject  of,  may  be  introduced  by  address  or  message,  2064. 

reading  of  document  or  record,  2065. 
motion,  2068. 
referred  to  committee,  2073. 
brought  in,  on  the  debates  of  the  house,  2070. 
heads  for,  2072. 

house  moved  for  leave  to  bring  in,  2077,  2082,  2118. 
in  reference  to  which  preliminary  proceedings  must  take  place  in  committee 

of  the  whole,  2079. 
committee  to  prepare  and  bring  in,  2091. 
drawing  of,  2092. 
title  of,  2094,  2185,  2229. 
preamble  of,  2100,  2177,  2182. 
enacting  style  of,  2101. 
purview  or  body  of,  2103. 
provisos,  exceptions,  or  savings  in,  2104. 
schedules  attached  to,  2105,  2182. 
date  of,  2106. 

general  preparation  of,  2109. 

must  be  drawn  in  conformity  with  the  orders  of  the  house,  2109,  2115. 
presentation  and  reception  of,  2117. 
sent  by  one  house  to  the  other,  2122,  2129,  2230. 
stages  or  readings  of,  2123. 

ancient  practice  respecting,  2125. 
subject  of  motions,  2175. 
commitment  of,  2126,  2133,  2156. 
amendments  of,  2126,  2219,  2224,  2164,  2171,  2180. 
additions,  2173,  2187. 
provisos,  2174. 

between  the  two  houses,  2231.     See  Appendix,  XVL 
select  committee  on,  2234. 
improperly  adopted  or  rejected,  2404. 
engrossment  of,  2127,  2129,  2133,  2200,  2209. 
dropped,  2134,  2348. 
first  reading  of,  2135,  2166. 

if  fixed  for  future  day,  2140. 
ancient  practice  respecting,  2141. 
may  be  opposed,  2142. 
in  U.  S.  house  of  representatives,  2143. 
motion  to  read  a  second  time,  2146. 
second  reading  of,  2146,  2151. 

motion  for,  2146,  2152. 

on  day  beyond  close  of  session,  2153. 
fixing  time  for,  2147. 
stage  at  which  a  hearing  commonly  takes  place,  2155. 

merits  are  debated,  2154. 
order  of  the  day  for,  2151. 
committees  on,  instructions  to,  2161. 
report  of,  2192,  2199. 


INDEX.  1031 

BILLS  —  continued. 

committees  of  conference  on,  2258. 

report  of,  2269. 
called  by  clauses,  2178. 
filling  blanks  in,  2183. 
union  or  division  of,  218G,  2196. 
third  reading  of,  2200,  2209. 
recommitment  of,  2206,  2226. 
printinn;  of,  2227,  2373. 

authentication  of,  between  the  two  houses,  2276. 
may  be  commenced  where,  2295. 
money,  2303,  23C1,  23C9. 

if  rejected,  cannot  be  renewed  at  same  session,  2307. 
contradictory,  cannot  be  passed  at  the  same  session,  2313. 
of  same  substance  with  one  already  pending,  cannot  be  moved  for  or  intro 

duced,  2317. 
withdrawal  of,  2116,  2330. 

takes  place  when,  2330,  2334. 
reasons  for,  2332. 
mode  of,  2337,  2340. 
motion  for,  2339. 

followed  by  introduction  of  new  bill,  2340. 
rejection  of,  2341. 

motion  for,  2342. 
effect  of,  2344. 
by  the  other  house,  2292. 
laying  aside  of,  2345. 

takes  place  when,  2345. 
clauses  of,  may  be  withdrawn  when,  2338. 
resolve  to  proceed  no  further  with,  2347. 

sending  documentary  evidence  with,  from  one  house  to  the  other,  2363. 
approval  of,  by  executive,  2364. 

how  signified,  2364,  2376. 
may  be  withheld,  2371. 
custody  of,  2364,  2373,  2376,  2390. 

passed  by  both  houses,  practice  in  U.  S.  concerning,  2374. 
return  of,  by  executive,  with  objections,  2379. 

passed  notwithstanding,  2381 
lost  or  mislaid,  2396. 
ordered  to  lie  on  the  table,  2397. 
order  of  notice  on,  2398,  2408. 
vote  on,  incorrectly  announced,  2402. 
private,  754,  758,  1039,  2407. 

must  have  preamble,  2100. 

by  whom  prepared,  2114. 

peculiar  proceedings  respecting,  2408. 

notices  of  intention  to  introduce,  2411. 

parliamentary  agents  for,  2412,  2421. 

office  for  business  relating  to,  2414,  2425,  2444,  24  60. 

committees  relative  to,  2415,  2418,  214  7. 


1032  INDEX. 

BILLS  — continued. 

private,  time  for  proceeding  with,  2420. 
how  brought  in,  2423,  2425. 
petitions  for,  2425. 

time  for  presenting,  2422. 
may  be  opposed,  2426,  2447,  2474. 
hearing  on,  2427,  2461. 
presentation  of,  to  the  house,  2435. 
referred  to  standing  orders  committee,  2435,  2461, 
when  and  in  what  form  presented,  2441. 
blanks  in,  2441. 
■printing  of,  2443,  2497. 
readings  of,  2444,  2504. 
unopposed,  committees  on,  2447. 

proceedings  of,  2448. 
opposed,  "  "  "  "    2472. 

committees  on,  duties  of,  as  to  reporting,  2489. 

have  no  power  to  send  for  persons  and  papers,  2491. 
adjournment  of,  2495. 
report  of,  2497. 

proceedings  on,  2499. 
two  general  rules  of  house  of  commons  respecting,  2506. 
amendments  to,  proceedings  between  the  two  houses  respecting,  2507 
must  originate  in  which  house,  2509. 
proceedings  on,  in  house  of  lords,  2510. 
printed  by  the  queen's  printers,  2526,  2528. 
not  printed,  2526,  2529. 
fees  chargeable  on,  2531. 
costs  in  respect  of,  2532. 
local  and  personal,  declared  public,  2526,  2527,  2530. 
how  proved  in  courts,  etc.,  2530. 
BLANKS, 

motions  to  fill,  1354. 
BLINDNESS, 

does  not  render  ineligible,  60. 
BOOKS, 

reading  from,  in  speech,  1662. 

during  a  debate,  1779. 
BRANCHES, 

equality  and  independence  of,  1701. 
^         one  cannot  take  notice  of  matters  depending  in  the  other  till  regularly  com- 
municated, 1703. 
improper  allusions  by  member  of  one,  to  the  otller,  disorderly,  1707,  1710. 
BRIBERY, 

as  a  disqualification  to  membership,  80. 
as  affecting  return,  172. 

election,  181,  186,  475. 
definition  of,  186. 
how  punishable,  189. 
of  members  or  officers,  630. 


INDEX.  1033 

BRITISH  COLONIES  AND  TROVINCES, 

legislatures  of,  how  convened,  85. 
BUSINESS, 

general  order  of,  1527. 
intervening,  139-i  n. 

CALL,  264,  270,  435. 

motion  for,  269,  437. 
CANDIDATES, 

rival,  agreement  of,  respecting  right  of  certain  persons  to  vote,  200. 
CHAIRMAN, 

origin  of  the  term,  287. 
to  what  assemblies  applied,  287. 
CHAPLAIN,  338. 
CITIZENSHIP, 

a  qualification  of  a  member,  61. 
an  elector,  34. 
CLERK, 

•     of  house  of  lords,  320,  330. 
commons,  320. 

appointment  of,  321. 
oath  of,  321. 

may  appoint  deputy  and  other  clerks,  322. 
assistant,  323. 
more  than  one,  324. 
pro  tern.,  325 
duties  of,  216,  326. 
has  custody  of  papers,  etc.,  328,  842. 
misentries  of,  329. 
may  adjourn  assembly,  362. 
of  legislatures  of  U.  S.,  331. 

how  appointed,  331. 
tenure  of  office  of,  331. 
oath  of,  331. 
bonds  of,  331. 

powers  and  duties  of,  334.  ' 

vacancies  in  office  of,  332. 
number  of,  333. 
to  committees,  334. 

to  authenticate  copy  of  order  for  attendance  of  Tntnesses,  945. 
of  journals  and  papers,  1022. 
to  read  petitions,  1120,  1128,  1161. 
to  take  down  disorderly  words,  1765,  1768. 
to  see  bills  engrossed,  2213. 
to  authenticate  bills,  2293. 
COMMIT, 

motion  to,  1387,  1444,  1446. 

may  be  amended,  1454. 
COMMITTEES, 

how  appointed,  237,  291.     See  Appendix,  XIV. 

87 


1034  INDEX. 

COMMITTEES  —  continued. 

power  of,  to  send  for  persons  and  papers,  634,  939. 

communications  by,  8G6. 

attendance  of  witnesses  before,  952,  993. 

minutes  of  testimony  before,  987. 

reports  of,  respecting  evidence  before,  993,  1016,  1021. 

hearing  of  parties  before,  1029. 

proceedings  of,  when  may  be  introduced  in  debate,  1729. 

standing,  1856. 

in  U.  S.  house  of  representatives,  1856. 
select,  turned  into,  1857. 
open,  how  differ  from  committees  of  the  whole,  1858. 
of  secrecy,  1859. 
above  stairs,  18G0. 
previous,  1860. 
of  inquiry,  1860. 

of  conference  between  two  houses,  2265. 
for  standing  orders,  2416,  2512. 
of  selection,  2417,  2447. 
select,  on  petitions  for  private  bills,  2415. 
who  may  be  of,  1862,  1877. 
vacancies  in,  1863,  1876,  1886. 
number  of  members  of,  1865. 
discharge  of     "        "    1877,  1887,  1910. 
appointment  of,  1861. 

time  of,  1868. 
manner  of,  1870. 
on  motion,  1871. 
by  ballot,  1880,1910. 
other  modes  of,  1890. 
to  be  notified  to  members  by  clerk,  1891. 
by  the  speaker,  1892,  1910. 
viva  voce.,  1892,  1910. 
incidental  powers  of,  1885. 
time  of  sitting  of,  1895. 
adjournment  of,  without  day,  1896,  1934. 
place  of  meeting  of,  1900. 
power  of,  to  send  for  persons  and  papers,  1901. 
bound  by  order  of  reference,  1905. 
report  of,  from  time  to  time,  1904. 
"       "  1930. 

by  whom  prepared,  1935,  1937. 

must  correspond  with  authority  of,  1936,  1948. 

that  a  bill  be  brought  in,  1943. 

clerical  form  of,  1944. 

special,  1945. 

how  made,  1950. 

objections  to  receiving,  1952. 

motion  to  read,  1955. 

a  second  time,  1960. 


INDEX.  1035 

CO^miTTEES  — continued. 

select  report  of,  proceedings  with  reference  to,  1956. 
debate  respecting,  190 2. 
recommitment  of,  19G0,  1963. 
may  be  dealt  with  in  parts,  1967. 
minority,  1968. 
grand,  2023.     History  of,  see  Appendix,  XV. 
of  privileges,  2025. 
of  supply,  2026,  2031. 

in  congress  of  U.  S.,  2042. 
of  ways  and  means,  2026. 

in  congress  of  U.  S.,  2042. 
joint,  2043. 

of  both  houses  in  communication  with  each  other,  2044. 
on  subject  of  bills,  2073. 
to  prepare  and  bring  in  bill,  2091. 
to  report  by  "bill  or  bills  or  otherwise,"  2091. 
instructions  to,  2161. 
on  bills,  report  of,  2P99. 

reading  of,  2201. 
clause  on,  2202,  2220. 
of  the  whole,  right  of  speaking  in,  1G04,  1969.     See  Appendix,  XV. 
appointment  of,  1970,  1987. 
sitting  of,  1971. 
chairman  of,  1975. 
clerk  of,  1976. 

proceedings  of,  recorded,  1977. 
duties  of  ofTicers  while  house  is  in,  1981, 
point  of  order  in,  1982. 
order  for  going  into,  1987. 

dropped,  1988, 1991. 
discharged,  1989. 
.     postponed,  1990. 
proceeded  with,  1991. 
instructions,  etc.  to,  1992. 
quorum  in,  1995. 
authority  of,  1996. 

cannot  be  delegated  to  sub-committee,  1999. 
motions  in,  2000. 

cannot  entertain  matter  of  privilege,  2000.  2019. 
take  cpiestion  by  yeas  and  nays,  2000. 
reconsider  vote,  2000. 
adjourn,- 2004. 
to  report  progress  when,  2005. 

resolutions  when,  200G. 
report  of,  2011. 

special,  2017. 
how  made,  2021. 
origin  of,  202;5. 
on  motion  for  supply,  2028. 


]  036  INDEX. 

COIMIMITTEES  —  continued. 

of  the  whole,  on  the  state  of  the  nation,  2041. 

Union,  2042. 
COMMONS,  HOUSE  OF, 

choice  of  speaker  by,  may  be  negatived  by  crown,  700. 

how  constituted,  702. 

collective  name  of,  702. 

negative  of,  on  house  of  lords,  713. 

grand  inquest  of  the  nation,  714. 

powers  of  members  of,  721,  723. 

members  of,  serve  for  the  whole  kingdom,  721. 

pledges  given  by,  before  election,  724. 

equality  of,  725. 
may  be  cleared  of  strangers,  729. 
messages  of,  to  House  of  Lords,  808. 
when  speaker  of,  may  take  the  chair,  875. 
cannot  administer  oaths  to  witnesses,  955. 
order  of  business  in,  1528. 
supplies  granted  by,  2027. 
address  of,  in  answer  to  king's  speech,  2030. 
right  of,  to  judge  of  returns,  etc.  of  members,  146. 
assembling  and  organization  of,  215. 
clerk  of,  duties  of,  216. 
members  of,  to  take  oaths  of  abjuration,  etc.  217,  226. 

property  qualifications  of,  227. 

number  of,  237. 

oaths  of,  3G6. 

have  no  pay,  444. 
speaker  of,  see  Speaker. 
address  of,  in  answer  to  king's  speech,  226. 
penalties  for  sitting  in,  without  being  qualified,  227. 
officers  of,  appointed  by  crown  for  life,  except  speaker,  237,  274,  820. 
call  of,  264. 
time  of  sitting  of,  364. 
daily  sitting  of,  how  opened,  371. 
message  to,  384. 
petitions  to,  431. 
salaries  In,  444. 
vacancies  In,  how  filled,  453 

created,  466. 
membership  in,  compulsory,  465. 
COMMUNICATIONS, 

between  different  branches,  737,  803,  2350- 
with  executive,  867. 
CONFERENCES, 

between  the  two  branches,  820. 
occasions  of,  821,  865. 
message  requesting,  824. 
time  and  place  of,  826,  861. 
how  conducted,  828,  845. 


INDEX.  1037 

CONFERENCES  —  continued. 

report  of,  834,  83C,  845,  851. 

falling  through  of,  835. 

free,  838. 

bare,  839. 

successive,  847. 

removal  of  strangers  from,  857. 

.orders  relating  to,  858. 

reporters  at,  859. 

ceremonies  at,  862. 
CONFOlUiriT, 

occasional,  bill  for  preventing,  see  Appendix,  XVL 
CONGRESS  OF  THE  UNITED  STATES, 

functions  of,  9. 

election  of  members  of,  19. 

rules  and  orders  of,  274. 

territorial  delegates  in,  253,  281. 

functions  of,  282. 

proceedings  of,  public  or  private,  346,  349. 

confidential  communications  to,  349. 

passage  of  bill  by,  notwithstanding  president's  veto,  414. 

address  or  message  of  executive  to,  448. 

vacancies  in,  480. 

character  of,  480. 

terms  of  membership  in,  501. 

how  designated,  502. 

term  of  service  in,  commences  when,  527. 

powers  of,  718.    See  Senate;  House  of  Representatives. 
CONGRUITY, 

of  amendments,  1363. 
CONSENT, 

taking  sense  of  house  by,  1793. 
CONSTITUENCIES, 

kinds  of,  14,  18. 
CONTEMPT, 

of  legislative  authority,  655,  671. 
CONTRACTS, 

laws  impairing  obligation  of,  762,  770. 
COSTS, 

in  trials  of  controverted  elections,  212. 
CRIMES, 

persons  convicted  of  certain,  not  entitled  to  vote,  47,  50. 

conviction  of,  as  a  disqualification  to  membership,  80. 
CROWN  OF  GREAT  BRITAIN, 

may  veto  acts  of  parliament,  700. 

functions  of,  714. 

messages  from,  747,  868. 

a  branch  of  the  legislature,  867. 

pleasure  of,  how  signified,  886. 

recommendation  of,  how  signified,  887. 

87* 


1038  INDEX. 

CROWN  OF  GREAT  BRITAIN  — conimuerf. 

consent  of,  how  given,  888. 
DEAF  AND  DUMB  PERSONS, 

whether  eligible,  60. 
DEBATE, 

right  of,  1532. 

what  constitutes,  1533. 

what  questions  open  to,  1532.   " 

order  in,  1533. 

precedence  in,  1535. 

rules  of  order  respecting,  1549. 

must  be  on  question  proposed  or  to  be  proposea,  1557. 

adjournment  of,  1383,  1390,  1305,  1518,  1521,  1523,  1590. 

allowed  on  question  until  decided,  1610. 

relevancy  in,  1637. 

personality  in,  1676. 

freedom  of,  necessary,  1686. 

publication  of,  1704. 

any  thing  said  or  done  in,  not  to  be  referred  to  in  subsequent  debate  during 
same  session,  1723. 

when  proceedings  of  committees  may  be  introduced  in,  1729. 

irregularity  in,  1735. 

proceedings  to  prevent,  1746. 

deportment  of  members  not  engaged  in,  1773. 

of  the  house,  bill  brought  in  on,  2070. 
DEBT, 

bills  for,  759. 
DEPARTMENTS  OF  GOVERNMENT, 

separation  of,  1. 
DEPORTMENT, 

of  members  not  engaged  in  debate,  1773. 
DEPOSITIONS, 

in  cases  of  controverted  elections,  211. 
DISORDERLY  WORDS, 

complaint  for,  when  and  how  made,  1765, 

to  be  taken  down  by  clerk,  1 768. 

action  of  house  upon,  1 768. 
DISQUALIFICATIONS, 

to  vote,  25,  47. 

to  be  elected,  56,  76. 

of  candidate,  effect  of  notice  of,  to  electors,  177,  179. 
DISSOLUTION,  447,  503,  516,  525. 
DIVISIBILITY,  1342.     See  Appendix,  XIL 
DIVISION, 

taking  sense  of  house  by,  1613,  1798. 

right  of  member  to  demand,  1798. 

if  called  for,  must  go  on,  1799. 

point  of  order  arising  during,  1809. 

speaker  to  direct  proceedings  on,  1801. 

member  taking  wrong  side  on,  1813. 


INDEX.  1039 

DIVISION  —  con^znwef/. 

notice  given  of,  in  house  of  commons,  by  bell,  1815. 
DIVORCE, 

bills  of,  proceedings  with  reference  to,  2518. 
DOCUMENTS, 

distribution  of,  432.     See  PapebS. 
DOMICIL.     See  Residence. 
DOORKEEPERS, 

to  congress,  336. 
DRUNKENNESS, 

disqualifies  from  voting,  27. 
DUELLING, 

as  a  disqualification  to  membership,  80. 

ELECTION. 

making  and  determining  of,  16. 

method  of  conducting,  1 7,  85,  94,  233. 

freedom  and  purity  of,  how  secured,  23. 

where  may  be  held,  40. 

new,  92,  137. 

of  several  at  the  same  time,  93. 

void,  93,  125,  181,  197. 

cannot  be  made  vahd,  206. 
if  conditional,  208. 
controverted,  9G,  142,  192,  198,  199,  229,  231,  236,  475,  657,  1057,  1139. 

rules  of  evidence  in  cases  of,  210. 

costs  in  trials  of,  212. 

pay  of  contestants,  212. 

petition  in  cases  of,  213,  1139,  1141. 

remarks   in   debate  tending    to   prejudice    members  respectmg, 
irregular,  1735. 
how  defeated,  114. 
result  of,  how  determined,  115,  120. 
number  necessary  to,  119,  121. 
where  conducted  on  plurality  principle,  126,  128,  134. 

majority        "  128. 

writs  of,  132,  135,  193,  447,  451,  454,  457.     Appexdix,  XL 
"  regulated  in  this  country  by  constitution  and  laws,  135. 
authentication  of,  136,  143,  233. 
renunciation  of,  137. 

validity  of,  when  may  be  inquired  into,  152,  556. 
committee  on,  in  House  of  Commons,  153,  158. 
Grenville  act  concerning,  154. 
Sir  R.  Peel's  act     "  157. 

committees  on,  in  this  country,  164. 
of  unqualified  persons,  1 75. 
freedom  of,  181,  197,  232,  234. 
how  affected  by  riots,  182. 

bribery,  186. 
wager  on  event  of,  188. 


1040  INDEX- 

ELECTION  —  continued. 

as  affected  by  qualifications  and  conduct  of  returning  officers,  193. 

held  by  improper  officers,  193. 

when  set  aside  on  account  of  illegal  votes,  1 98. 

irreo-ularities  not  sufficient  to  invalidate,  203. 

once  made,  not  revocable,  205. 

in  representative  governments,  must  be  regulated  by  law,  233. 

of  members,  legislature  sole  judges  of,  1050. 
ELECTORS, 

who  may  be,  22. 

privileged  from  arrest,  etc.,  23. 

casual  absence  or  removal  of,  39. 

qualifications  of,  referable  to  what  time,  67. 

lists  or  registers  of,  87,  89. 

notice  of  meetings  of,  87. 

may  vote  for  whom,  89. 

remedy  of,  if  unlawfully  prevented  from  voting,  90,  139,  648. 

equality  of,  91,  114. 

can  give  but  one  vote  at  same  election,  91. 

notice  to,  of  disqualification  of  candidate,  177,  179. 

evidence  admissible  of  general  reputation  of  political  character  of,  199. 

right  of,  exhausted  by  election,  205. 

void  proceedings  of,  cannot  be  rendered  valid,  206. 

division  of,  into  constituencies,  233. 

control  of,  over  persons  elected,  723. 
ELIGIBILITY, 

conditions  of,  55. 

not  affected  by  temporary  inability  to  perform  functions  of  member,  83. 
EMPLOYMENTS, 

which  disqualify  from  membership,  77. 
EVIDENCE, 

rules  of,  in  cases  of  controverted  elections,  210. 

on  which  parliamentary  proceedings  are  founded,  741. 

nature  of,  742. 
rules  of,  743,  968. 

of  common  fame,  745. 

statements  of  members,  746. 

other  sources  of,  747. 

sent  by  one  branch  to  the  other,  748. 

before  parliament,  not  to  be  used  elsewhere,  1001. 
EXECUTIVE  DEPARTMENT, 

connection  with,  as  affecting  eligibility,  77. 

termination  of  office  in,  241. 
functions  of,  in  connection  with  legislature,  446. 
head  of  government,  446. 
message  of,  448,  747,  876,  881,  896. 
veto  of,  450. 

convenient  access  to,  508. 
power  of,  over  legislature,  516. 
to  convene     "     520. 


INDEX.  1U41 


EXECUTIVE  DEPARTMENT— con/muerf. 

communications  by,  C32. 

right  of  head  of,  to  call  on  officers  of,  for  information,  632. 

in  U.  S.  when  present  in  legislature,  876. 
EXPLAIN, 

right  to,  lo9t. 

limitation  of,  1596. 
EX  POST  FACTO  LAWS,  762,  769. 
EXPULSION, 

as  dis(juaiifying  from  membership,  82. 

causes  of,  84. 

as  a  punishment,  192. 

FACT, 

statement  of,  right  to  make,  1594,  1602,  1655. 
FAME,  COMMON, 

evidence  of,  745. 
FELONY, 

effect  of  conviction  of,  on  right  of  suffrage,  52. 
FINE, 

right  to  impose,  676. 
FLOOR, 

who  entitled  to,  1532. 

may  be  temporarily  yielded,  1547. 
FRANKING, 

privilege  of,  432,  605. 
FRAUD, 

effect  of,  on  ballot,  106. 

in  obtaining  return,  172. 
FREEDOM, 

a  qualification  of  an  elector,  35. 
FREEDOM  OF  SPEECH, 

to  be  enjoyed  by  members,  601.     See  Appendix, 

GOVERNMENT, 

original  elements  of,  232. 

three  departments  of,  703,  768. 
GUARDIANSHIP, 

persons  under,  not  entitled  to  vote,  47,  54. 

HABEAS  CORPUS, 

writ  of,  must  be  obeyed  by  member,  565. 
to  discharge  member  under  arrest,  587,  593. 
HEARING  OF  PARTIES, 

how  prayed  for  and  ordered,  1027,  1046. 
with  and  without  counsel,  1027,  1032. 
to  what  restricted,  1029,  1033. 
before  committees,  1029. 
time  and  manner  of,  1031. 
on  bills,  1031. 


1042  JXDEX. 

HEARTXG  OF  VXVlTW.S  —  contimted. 

deportment  of  parties  heard,  1033. 

classes  of,  1034,  1042. 

on  ri!i;lits  of  membership,  1035. 

on  punishment  of  ofrenccs,  1036. 

on  inquiries  respecting  public  officers,  1037, 

on  bills  of  attainder,  etc.,  1038. 

on  private  bills,  1039,  2427,  2461. 

on  public  bills  and  measures,  1041. 

grounds  of  allowing,  1042. 
HOLY  ORDERS, 

ineligibility  of  persons  in,  59. 
HOUSE, 

meaning  of,  in  determining  what  members  are  in,  1795. 
See  Commons  ;  Lords  ;  Representatives. 

IDIOTS  A^^D  LUNATICS, 

not  allowed  to  vote,  24,  27. 
eligible  to  office,  56,  60. 

impeach:\ient, 

trial  of,  by  House  of  Lords,  330. 

preliminai-y  inquiries  respecting,  1037. 

definition  of,  2535. 

first  instance  of,  2536. 

purpose  of,  253 D. 

how  conducted,  2541. 

one  convicted  on,  may  be  pardoned  by  crown,  2553. 
"  "  "    cannot  "  "  president,  2570. 

in  this  country,  2554. 

practice  of  congress  respecting,  25G3. 
IMPRISONMENT, 

for  debt,  does  not  render  ineligible,  83. 

misconduct  of  returning  officers  punishable  by,  139. 

members  exempt  from,  561. 

imposed  by  legislature,  677,  690. 
INDIANS, 

not  entitled  to  vote,  47,  54. 
INFANTS.     See  Minors. 
INSTRUCTION.  RIGHT  OF,  726. 

how  exercised,  728. 
INTEREST, 

as  disqualifying  from  voting,  1846. 

JOURNAL,  327,  415,  642. 
mistakes  in,  329. 
by  whom  kept,  418. 
reading  of,  419. 
correction  of,  419. 
form  and  manner  of  keeping,  422. 
publication  of,  423. 


INDEX.  1043 

JOURNAL  —  continued. 

expunjjing  of  entry  in,  424. 

competenoj'  of,  as  evidence,  425. 

contents  of,  how  proved,  427. 

search  of,  for  precedents,  781. 

of  congress,  421 
JUDGES, 

opinions  of,  may  be  rcf^uired,  633. 

by  House  of  Lords,  1065. 
JUDICLYL  DEPARTMENT, 

connection  with,  as  alT'ecting  eligibility,  77,  79. 

termination  of  office  in,  241. 
JURORS, 

members  exempt  from  serving  as,  598. 

LEGISLATIVE  ASSEMBLIES, 

judges  of  the  election  of  members,  141,  147,  149,  164,  556,  612,  651,  657. 

right  of,  to  set  aside  election,  192. 

nature  of,  210. 

constitution  of,  214. 

assembling,  qualifying,  and  organizing  of,  215. 

delay  and  inability  of,  to  organize,  238. 

organization  of,  215,  271,  275. 

temporary,  242,  262. 

permanent,  243. 

notice  of,  given  to  executive,  277,  314. 

by  one  branch  to  the  other,  277,  314. 
call  of,  2G4,  270,  435. 

motion  for,  2G9,  437. 
when  may  proceed  to  business,  278. 
place  and  manner  of  sitting,  342. 
meetings  of,  must  be  held  where,  343. 
inviolability  of,  343. 
may  exclude  strangers,  343,  388,  623. 
proceedings  of,  private  or  public,  344,  348,  351,  623. 
cannot  change  their  original  constitution,  346. 
legislative  days  of,  350. 

certain  business  of,  assigned  for  certain  day,  358. 
clock  of,  359. 

session  o*",  prolonged  into  second  days,  360. 
hour  of  meeting  of,  367. 
manner  of  speaking  in,  374. 
rule  of  decision  in,  412. 
recess  of,  446,  515. 

have  no  authority  except  during  session,  496. 
convenient  access  of,  to  executive,  508. 
may  sit  on  what  days,  509. 
assembling  of,  by  proclamation,  520. 
change  of  place  of  meeting  of,  520. 
privileges  and  incidental  powers  of,  529,  640. 


L044  rsTDEX. 

LEGISLATIVE  ASSEMBLIES  — con^muerf. 
functions  of,  GOG. 

when  may  be  exercised,  529. 
suspended,  315. 
collective  privileges  of,  608. 
consequences  of  breach  of  privilege  of,  608. 
right  of,  to  call  on  other  departments  for  information,  631. 
to  recpiiie  opinions  of  judges,  633. 
investigation  by,  634,  641. 
protection  of,  extended  to  persons  summoned  to  appear  before,  636,  603. 
proceedings  of,  cannot  be  interfered  with,  639. 
judicial  powers  of.  642. 

jurisdiction  of,  as  judicial  tribunal,  original,  646. 

exclusive,  647. 
final,  649. 
civil,  651,  G57. 
criminal,  652,  664. 
of  contempt,  655,  671. 
may  punish  misconduct  of  persons  not  members,  667. 
judgments  of,  how  enforced,  673. 
power  of  to  inflict  fine,  676. 

imprisonment,  677,  690. 
reprimand,  682. 
two  fundamental  forms  of,  720. 
powers  of  members  of,  individually,  720. 

enforcement  of  orders  of,  may  be  required  by  every  member,  729. 
harmony  between  branches  of,  732. 

offences  against  one  Dranch  of,  by  members  or  officers  of  the  other,  733. 
transmission  of  evidence  by  one  branch  of,  to  the  other,  735,  749. 
knowledge  of  doings  of  one  branch,  how  obtained  by  the  other,  736. 
interference  of  one  branch  in  proceedings  of  the  others,  737. 
forms  of,  751,  773,  795. 
communications  of,  803. 

equality  and  independence  of  branches  of,  1701. 
reflections  on,  by  member,  disorderly,  1737. 

proceedings  of,  by  member,  disorderly,  1740. 
questioning  powers  of,  by  member,  disorderly,  1740. 
of  United  States,  existence  and  powers  of,  6. 

how  convened  and  dissolved,  7,  86,  135. 

kinds  of,  9. 

who  cannot  be  members  of,  56,  77. 

requisites  to  membership  of,  57. 

vacancy  in,  how  filled,  135. 

modelled  after  British  parliament,  215,  697. 

preliminary  proceedings  in,  228. 

daily  sitting  of,  how  opened,  371. 

times  of  holding,  and  periods  of,  448. 

membership  in,  voluntary,  468. 

refusal  to  accept,  471. 
establish  tlieir  own  rules  of  proceeding,  498. 


INDEX.  1045 

LEGISLATIVE  ASSEMBLIES  —  continued 

namey,  terms,  and  meetings  of,  500. 

how  designated,  502. 

incidental  powers  of,  as  affected  by  constitutional  and  logal  provisions,  684, 

may  ])iinisli  niisconduct  of  members  and  others,  C85,  C'JO. 
LEGISLATIVE  DEPARTMENT,  2. 

branches  of,  3. 

functions  of,  4,  8. 

suspension  of,  241. 

expires  when,  241. 

sovereignty  of,  704. 

powers  of,  in  U.  S.,  constitutional  limitation  on,  715. 
LETTERS, 

reading  from,  in  debate,  1GG8. 
LIBEL, 

publication  of,  by  legislature,  433. 

cannot  be  published  by  member,  604. 

on  legislature,  GOO,  029. 
LIE  ON  THE  TABLE, 

motion  to,  1444,  1449, 

cannot  be  amended,  1523. 

made  in  committee  of  the  whole,  2000. 
LIEUTENANT-GOVERNOR, 

where  president  of  one  branch,  298. 
LORD  CHANCELLOR, 

presiding  oiKeer  in  house  of  lords,  227,  285. 

functions  of,  288,  302. 
LORDS,  HOUSE  OF, 

how  constituted,  701. 

negative  of,  on  house  of  commons,  713. 

a  court  of  error  and  appeals,  714,  751. 

may  be  cleared  of  strangers,  729. 

attendance  of  judges  on,  7G0. 

messages  of,  to  house  of  commons,  806. 

may  administer  oaths  to  witnesses,  955. 

right  of,  to  call  for  opinions  of  judges,  10G5. 

members  of,  may  vote  by  proxy,  401,  434,  1818. 
protest  against  vote,  1820. 

supplies  assented  to  by,  2027. 

officers  of,  appointed  by  crown  for  life,  227. 

lord  chancellor,  presiding  officer  in,  227. 

no  casting  vote  in,  288,  302. 

not  a  representative  body,  302. 

judicial  functions  of,  330. 

MACE,  354. 
MAJORITY, 

age  of,  25. 

vote  of,  decisive,  115,  412. 

meaning  of,  117,  119. 

83 


1046  INDEX. 

MAJOllITY  —  continued. 

principle  of,  origin  and  introduction  of,  126.     See  Appendix,  IV. 
principle  of,  does  not  prevail  in  England,  126. 
when  equivalent  to  plurality,  131. 
requisite  to  elect  presiding  officer,  298. 
question  usually  decided  by,  1825. 
more  than,  when  necessary,  1826. 
MEMBERS, 

already  returned,  no  longer  eligible,  63. 

qualifications  of,  55,  276,  470. 

election  and  return  of,  87. 

exclusion  of,  142. 

too  many,  elected,  169. 

wrong  name  of,  in  return,  1 70. 

expulsion  of,  192,  280,  434,  474,  621,  625,  683. 

under  restraint  or  suspension,  280,  474,  621,  625,  683. 

rights  of,  in  first  instance,  determined  by  return,  229,  231. 

who  may  act  as,  230,  233,  240. 

oath  of,  243. 

absent,  attendance  of,  how  compelled,  256,  264,  435,  621. 

obligation  of,  to  attend,  267. 

equality  of,  279,  413. 

exceptions  to,  730. 
seats  of,  352. 

in  parliament,  352. 
how  assigned  in  U.  S.,  353. 
pay  of,  356,  434,  615. 
personal  deportment  of,  372,  397,  399. 

names  of,  not  used,  381,  1671. 

what,  may  vote  on  any  question,  393. 

"pairing  off"  of,  443. 

refusal  to  qualify  as,  472. 

resignation  of,  473,  487. 

death  of,  476. 

disqualification  of,  477. 

acceptance  by,  of  disqualifying  or  incompatible  offices,  478. 

personal  privileges  of,  530,  546,  580. 

exempt  from  legal  process,  549,  559,  566,  578,  615. 
serving  as  jurors  or  witnesses,  598. 

who  are,  552. 

official  character  of,  all  persons  bound  to  take  notice  of,  554,  576,  590. 

how  discharged  from  arrest,  585. 

to  enjoy  freedom  of  speech,  601. 

personal  disabilities  of,  606. 

assault  on,  609,  628. 

misconduct  of,  653,  666,  685. 

freedom  of,  in  going  and  returning,  1064. 

petitions  charging  or  implicating,  1142. 

new,  preference  of,  in  debate,  1542. 

rights  of,  to  floor,  1544. 


INDEX. 


1047 


MEMBERS  —  continued. 

to  speak  from  tlieir  places,  1550,  2002. 

to  rise  and  stand  uncovered,  1551,  2002. 

speech  of,  to  whom  addressed,  1552,  2002. 
not  to  be  written,  1553. 

questions  or  appeals  to,  in  debate,  1G76. 

personal  attjick  on,  in  debate,  1G74. 

censure  or  punishment  of,  for  disorderly  conduct,  1696. 

respect  due  from,  to  house,  tlie  laws,  etc.,  1736. 

use  of  indecent  lanj^uage  by,  disorderly,  1 738. 

reproaches  on  existing  government  by,  disorderly,  1742. 

disrespectful  language  by,  respecting  acts  disorderly,  1743. 

presumed  to  be  in  order,  1 758. 

to  keep  their  places  during  a  debate,  1771. 

while  tellers  are  counting,  1807. 

to  preserve  silence        "         "         "  ''  1781,  1807. 

during  a  debate,  1780. 

duty  of,  on  entering  house,  1776. 
crossing      "        1778. 

reading  of  books,  etc.,  by,  1779. 

personally  interested  in  ([uestion,  hearing  and  withdraAval  of,  1784,  1791. 

may  be  commanded  to  withdraw,  1788. 

when  may  speak  sitting,  1811. 
MEMBERSHIP, 

rights  of,  1035. 

called  in  question,  145,  148,  165,  233,  240. 
tribunal  for  trial  of,  146,  240. 
how  aflected  by  return,  167. 

compulsory  in  House  of  Commons,  465. 

arrest  on  civil  process  no  disqualification  to,  596. 

evidence  of,  59?,  1050. 
MEMORIAL, 

definition  of,  1077. 
MESSAGES, 

from  executive,  448,  506,  747,  868,  877,  881,  896. 

from  one  branch  to  the  other,  805. 

quorum  necessary  to,  817. 

mistakes  in,  818. 

by  whom  sent,  806,  819. 

written,  877. 

verbal,  877,  883. 

documents  accompanying,  881. 

address  in  answer  to,  892. 

to  introduce  subject  of  bill,  2064. 

decliniii'j;  to  furnish  certiln  papers,  see  Appendix,  XI. 
MILITARY,  NAVAL,  OR  MARINE  SERVICE, 

persons  in,  not  "residents,"  37. 

entitled  to  vote,  47,  54. 
^ULITARY  DUTY, 

pjrlbrmance  of,  a  qualification  of  an  elector,  46. 


1048  IKDES. 

MINISTERS, 

inquiries  addressed  to,  750,  1564,  1571. 

See  Holy  Orders. 
MINORS, 

not  allowed  to  vote,  24. 
eligible  to  office,  56,  58. 
MODERATOR, 

when  used  as  designation  of  presiding  officer,  287. 
MORAL  CHARACTER, 

a  qualification  of  an  elector,  46. 
MOTIONS. 

definition  of,  797. 

nature  of,  and  practice  respecting,  1175,  1202. 

necessary  to  putting  of  question,  1184,  1229, 12C3. 

stated  by  speaker,  291,  1185,  1231,  1234,  1563. 

question  of  consideration  of,  1186. 

notice  of,  911,  1187. 

how  and  when  given,  1190. 
abuse  of,  1196. 
object  of,  1197. 
dropped,  1206. 
when  required,  1210. 

withdrawal  of,  1198,  1203,  1231,  1236,  1241,  1247,  1477. 

on  same  subject,  by  different  members,  1199. 

bnn<Tfin<T  forward  of,  1 200. 

variation  of,  from  notice,  1205. 

time  of  making,  12^7, 1291. 

when  and  how  made,  1211. 

made  or  seconded  by  two  or  more  members  at  the  same  time,  1216, 1228. 

irregularly  made,  1219. 

ancient  practice  respecting,  1223,  1557. 

when  must  be  seconded,  1224,  1230,  1914. 

how  seconded,  1 225. 

priority  of,  1227. 

objectionable,  1231,  1250. 

neither  mover  nor  seconder  need  vote  for,  1229. 

power  of  mover  over,  1233,  1235, 1239. 

when  cannot  be  modified,  1244. 

inspection  of,  by  members,  1249. 

in  contravention  of  an  act,  1251. 

a  standing  order,  1252. 
a  special  order,  1253. 

once  disposed  of,  cannot  be  renewed,  312,  1254,  1299. 

to  reconsider,  1264. 

form  of,  1279. 

usually  expressed  in  the  affirmative,  1280. 

must  regularly  be  in  writing,  1283. 

only  one  can  be  made  at  same  time,  1284. 

length,  etc.  of,  1287. 


INDEX.  1049 

MOTIONS  —  continued. 

to  be  put  in  very  words  of  mover,  1290. 

wheu  one  must  be  decided  before  another  is  put,  1291,  129G,  1441,  1452. 

to  amend,  1302,  1444,  1521. 

division  of,  1342.     See  Aitkxdix,  XIL 

to  postpone,  1370,  1444,  1521. 

to  adjourn  the  debate,  1383,  1395. 

to  commit,  1387,  1444,  1521. 

to  suppress,  1389. 

to  adjourn,  1390,  1518,  1521. 

for  previous  question,  1404,  1444,  1521. 

to  lie  on  the  table,  1444,  1521. 

subsidiary  or  secondary,  1443. 

incidental,  145C. 

for  reading  ])apers,  1472. 

to  suspend  the  rules,  1478. 

connected  with  general  course  of  business,  1517. 

precedence  of,  1517, 1521. 

what,  cannot  be  applied  to  one  another,  1524. 

to  be  made  at  beginning  or  conclusion  of  speech,  1557. 

may  be  seconded  by  a  speech,  15G0. 

rule  respecting,  in  U.  S.  house  of  representatives,  1562. 

when  open  for  debate,  15G3. 

making  or  seconding  of,  equivalent  to  speaking,  1585. 

when  become  questions,  1586. 

right  to  speak  to  more  than  one,  on  same  subject,  1653. 

by  chairman  of  connnittee,  1947. 

respecting  committee's  report,  1955. 

in  committee  of  the  Avhole,  need  not  be  seconded,  2000. 

what  cannot  be  made,  2000. 
formal,  2004. 

to  introduce  subject  of  bill,  20G8. 

for  leave  to  bring  in  bill,  2077,  2082. 

notice  of,  2084. 
proceedings  on,  2084. 
MOVER, 

of  a  proposition,  right  of,  to  speak  first,  1536. 
MULATTOES, 

not  entitled  to  vote,  53. 

NATURALIZATION, 

regulated  by  congress,  34. 
NEGROES, 

not  entitled  to  vote,  47,  53. 
NEWSPAPERS, 

reading  from,  by  member  in  debate,  irregular,  1662. 

in  his  place,  17  79. 

OATH, 

taking  of,  a  qualification  of  an  elector,  46. 

88* 


1050  INDEX. 

OATH  —  continued. 

of  abjuration,  etc.,  taken  by  members  of  House  of  Commons,  217,  226,  366 
refusal  of  member  to  take,  467,  469. 
tiiken  by  witnesses  in  House  of  Lords,  955. 
not  "    "  "         "        "       "   Commons,  955. 

administered  to  witnesses  before  legislatures  in  U.  S.,  958. 
OFFENCES, 

against  legislature  or  members,  punishment  of,  1036. 
prosecutions  of,  directed  by  legislature,  1052. 
OFFICES, 

what,  render  ineligible,  77. 
when  to  be  designated  on  ballot,  105. 
disqualif}-ing  for,  or  incompatible  with  membership,  478. 
OFFICERS, 

choice  of,  275,  283. 
term  of  office  of,  283,  296. 
now  removed,  283. 

exempt  from  legal  process,  549,  559,  566,  578,  615. 
ORAL  SUFFRAGE, 

how  conducted,  94. 
prcA'ails  where,  177. 
ORDER, 

enforced,  and  questions  of,  decided  by  presiding  officer,  291. 

questions  of,  1457.     See  Appeal. 

violations  of,  1534,  1746. 

point  of,  rules  of  speaking  to,  1621. 

speaker's  opinion  on,  1694,  1697,  1751. 
may  be  referred  by  speaker  to  house,  1 754. 
arising  during  division,  1809,  1846. 

in  committee  of  the  whole,  2191. 
member  called  to,  1639. 
right  of  any  member  to  call  to,  1749,  1759. 
member  presumed  to  be  in,  1758. 
ORDERS,  248,  613. 

suspension  of,  729,  1478,  1492. 

as  a  source  of  parliamentary  practice,  784. 

standing,  785,  792,  1156. 

committee  for,  2416,  2512. 
not  in  use  in  this  country,  274,  498,  613. 
of  parliament,  248,  497,  613. 
sessional,  786. 
occasional,  787. 
definition  of,  798. 
kinds  of,  801. 

for  accounts,  papers,  etc.,  908. 
with  reference  to  witnesses,  937. 
publication  and  distribution  of,  1061. 
of  the  day,  practice  concerning,  1201. 
what  are,  1373,  1398,  1507. 
motion  to  proceed  with,  1377,  1399,  1508. 


INDEX.  lOGl 

OHDERS  —  continued. 

of  the  day,  dropped,  1384. 
special,  in  congress,  1512. 

PAINS  AND  PENALTIES, 

bills  of,  759,  1038,  lOCO. 
PAPERS, 

ordered  by  parliament,  914. 
congress,  928. 

address  to  crown  for,  915. 

how  presented,  919. 

•when  production  of,  will  be  ordered,  920. 

witnesses  may  be  required  to  produce,  936. 

power  of  committees  to  send  for,  939. 

custody  of,  1022. 

reading  of,  1472. 
PARDON, 

as  restoring  right  of  suffrage,  50. 

removing  ineliifibility,  81.     Of  persons  impeached,  see  Impkacument. 
PARLIAMENT  OF  GREAT  BRITAIN. 

constitution  of,  5,  699. 

existence  and  powers  of,  6. 

dissolution,  adjournment,  and  prorogation  of,  7,  447,  503,  516,  525,  870. 
premature,  241. 

how  convened,  7,  85,  447. 

length  of,  85,  447,  525,  700. 

members  of,  how  elected,  95,  126,  132,  134. 

struggles  between  lords  and  commons,  146. 

legislatures  of  U.  S.  modelled  after,  215,  302,  697,  777. 

time  and  place  of  holding,  how  fixed,  216. 

causes  of  summoning,  declared  by  sovereign,  219,  226. 

exclusion  of  strangers  from,  345. 

new  buildings  for,  352. 

manner  of  speaking  in,  374. 

names  of  members  of,  voting,  not  recorded,  402. 

two  houses  of,  courts  of  record,  425. 

effect  of  demise  of  crown  on,  447. 

speech  of  sovereign  on  opening,  447. 

message  to,  by  sovereign,  447,  877. 

how  designated,  499. 

acts  of,  how  legally  described,  499. 

privileges  and  powers  of,  534. 

privilege  of,  extended  to  persons  summoned  before,  636. 

judicial  powers  of,  642. 

power  of,  to  impose  fine,  676. 
imprison,  677. 

functions  of  crown  relative  to,  700. 

how  often  assembled,  700. 

supplies  provided  by,  700, 

omnipotence  of,  705,  715. 


1052  IXDEX. 

parlta:mkxt  of  great  Britain— co/j/jnue^;. 

negative  of  eacli  branch  of,  on  the  others,  707,  731. 
how  exercised,  713. 

questions  by  members  of,  to  ministers,  750. 

criminal  jurisdiction  of,  700. 

forms  of  proceeding  in,  77  7. 

standing  orders  of,  785. 

opening  of,  870. 

authority  of,  to  obtain  information,  908. 

returns  of  official  persons  to,  908. 

preservation  of  peace  in  the  place  where  it  is  sitting,  1063. 
PARLIAMENTARY  LAW, 

definition  of,  11. 
PAUPERS, 

not  entitled  to  vote,  38,  47. 

who  are,  48. 
PEACE, 

preservation  of,  in  place  where  parliament  is  sitting,  1068. 
PERSONAL  EXPLANATION, 

member  may  make,  1565. 
PERSONALITY, 

in  debate,  disorderly,  1676. 

speaker's  duty  to  prevent,  1690. 
PETITIONS,  • 

to  contest  right  of  membership,  150,  156,  158,  213. 

object  of,  1068. 

definition  of,  1069. 

private,  1070,  1079,  1083,  1148. 

public,  1070,  1074,  1083. 

joint  and  several,  1071. 

right  of,  1072,  1079,  1110,  1150. 
in  U.  S.,  1073. 

eflfect  of,  1075. 

when  and  how  to  be  received,  1076. 

kinds  of,  1077. 

objectionable  forms  of,  1077,  1089. 

frivolous,  malicious,  etc.,  1078. 

may  come  from  whom,  1079. 

ancient  practice  respecting,  1081,  1156. 

receivers  and  triers  of,  1081. 

later  practice  respecting,  1082,  1150. 

on  what  and  how  written,  1085. 

not  printed,  in  House  of  Commons,  1086 

may  be  printed,  in  House  of  Lords,  1086 

may  be  printed,  in  U.  S.,  1086. 

alterations  of,  1087,  1093,  1115. 

several  parts  of,  1088. 

siscninfj  of,  1092. 

forged,  1096. 

not  dated,  1098. 


indea.  1053 

PETITIONS  — con/mw^rf.  va 

annexation  of  documents  to,  1099. 
evidence  of  genuineness  of,  1100. 
language  of,  1101. 
construction  of,  1102. 
when  rejected,  1102,  HOC,  1127. 
le"-islature  must  have  jurisdiction  of  matter  of,  1106. 
prayer  essential  to,  1107. 

how  and  by  whom  presented,  and  read,  1100,  1109,  1130,'  1133,  1137,  1150. 
duty  to  receive,  1110. 
committees  on,  1111,  1155,  11  CI,  1171. 

reports  of,  1 1 73. 
duties  of  members  intrasted  with,  1112,  1114,  1125,  1137,  1160. 
motion  to  receive,  1121,  1125,  1135,  1143. 
withdrawal  of,  1122,  1137,  1140. 
motion  to  read,  1128,  1135,  1137. 
how  many  may  be  presented  at  once,  1136. 
election,  1139. 

relating  to  election  case,  1141. 
charging  or  implicating  members,  1142. 
for  relief  out  of  public  money,  1143. 
against  tax  bills,  114C. 
for  leave  to  present  petition,  1148. 
motion  to  print,  11C2. 

not,  in  themselves,  introductory  to  legislative  measures,  1165. 
rules  respecting,  in  U.  S.  house  of  representatives,  11 67. 
proceedings  on,  after  reading,  11C8. 
hearing  on,  11C9. 
to  introduce  subject  of  bill,  2063. 
PLURALITY, 

principle  of,  117,  126. 
when  equivalent  to  majority,  131. 

elections  where  conducted  on  principle  of,  126,  128,  134,  177. 
POLL, 

demand  and  taking  of,  96. 
amending  of,  98. 
close  of,  100,  197. 

time  of  opening,  not  specified  in  warrant,  203. 
not  kept  open  lawful  time,  203. 
POLL  BOOK,  94,  99,  120. 
POSTMASTER, 

to  U.  S.  house  of  representatives,  336. 
POSTPONE, 

motion  to,  1370,  1444,  1447. 

effect  of,  in  this  country,  1385. 

may  be  amended,  1454,  1523. 

cannot  be  made  in  committee  of  the  whole,  200U 
order  to,  effect  of,  1374. 

discharge  and  renewal  of,  1376. 
indefinitely,  motion  to,  1385. 


1054  i^^- 

POSTPONE  —  continued. 

indefinitely,  motion  to,  cannot  be  amended,  1523. 

made  in  committee  of  the  -whole,  2000. 

PRACTICE, 

sources  of,  777,  791. 
PRECEDENTS, 

as  determining  practice,  780. 

value  of,  783. 
PRESIDENT  OF  THE  UNITED  STATES, 

request  to,  by  congress,  for  information,  929. 
PRESIDING  OFFICER, 

not  always  a  member,  271,  285. 

functions  of,  288,  290,  292,  302,  310,  314,  318. 

-warrants  of,  290,  316. 

represents  assembly,  294. 

a  single  person,  295. 

permanent,  296. 

temporary,  298,  308,  312. 

bo-^v  chosen,  297. 

-removable,  297,  299. 

cannot  act  as  member,  297,  300,  312. 

exceptions,  301. 

casting  vote  of,  298,  301. 
death  of,  313. 
absence  of,  315. 
resolution  of  thanks  to,  317. 
qualities  of,  318. 
to  preserve  order,  373. 
PREVIOUS  QUESTION, 
form  of,  1280. 

motion  for,  1404,  1444,  1448. 
form  of,  1407. 
purpose  of,  1409. 
■when  cannot  be  put,  1414. 
efiect  of,  1418,  1526. 
cannot  be  amended,  1455,  1523. 
as  used  in  U.  S.,  1421. 
PRINTING,  430. 
PRINTER,  340. 
PRISONERS, 

not  entitled  to  vote,  38. 
PRIVILEGE, 

nature  of,  1032. 
breaches  of,  1056. 
questions  of,  1499. 

supersede  others,  1499,  1505. 

•what  are,  1503. 

cannot  be  entertained  by  committee  of  the  whole,  2000. 

committee  of,  2000, 


INDEX.  105.1 


PRmLEGED  QUESTIONS, 

what  are,  1507. 

precedence  of,  1514. 
PROPEllTY, 

as  a  qualification  of  an  elector,  44,  75. 
a  member,  Gl,  75. 
PROROGATION,  447,  503,  51C,  525. 

elTect  of,  !)17. 
PROSECUTIONS, 

dircited  by  legislature,  1052. 
PROTEST, 

of  members,  4 1 0. 

how  differs  from  petition,  1077. 

allowed  in  House  of  Lords,  410,  1820. 
PROXY, 

vote  may  be  by,  in  House  of  Lords,  1818. 
PUHLIC  OFFICERS, 

inquiries  respecting  conduct  of,  1037. 

right  to  call  on,  for  information,  1048. 
refer  matters  to,  10G6. 

QUALIFICATIONS, 

of  electors,  22,  67,  74. 
members,  55. 
QUESTION, 

forms  of  taking,  382. 

alwavs  founded  on  motion,  1184. 

of  cunsideration,  1180. 

ineidentil,  1456. 

by  one  member  to  another,  1572,  1576. 

for  information  by  member,  to  be  put  respectfully  157.'!. 

wlien  must  be  answered,  1575. 

to  speaker,  1579. 

how  may  arise,  1586. 

right  of  every  member  to  express  opinion  upon,  1586. 

subsidiary,  etc.,  1587. 

main,  suspension  and  re\'ival  of,  1587,  1623. 

new,  right  of  members  to  speak  to,  1589. 

technical  sense  of,  1591. 

new  and  ditlerent,  on  each  stage  of  bill,  1591. 

how  long  open  to  debate,  1610. 

taken  by  consent,  1611,  1793. 

voices,  1C12,  1614,  1794 

a  division  of  the  house,  1613,  1798. 

show  of  hands,  1821. 

difTcrent  modes  of  taking,  1792,  1817. 

to  what,  members  must  speak,  1619,  1623. 

on  point  of  order,  1621. 

mistaking,  1622. 

seeondarA',  which  involves  main,  1624. 


1056  INDEX. 

QUESTION  —  eonfinuerf. 

main,  merits  of,  -o'lien  open  to  discussion  on  secondary,  1632. 
manner  of  speaking  to,  1G34. 

to  be  stated  to  members  not  in  the  house  when  it  was  put,  1803. 
how  decided,  1826. 
equivalent,  1830. 

to  be  first  taken  on  least  sum  and  longest  time,  2003,  2184. 
framed  by  speaker,  formerly,  2130. 

once  decided,  cannot  be  renewed  at  same  session,  2135,  2305. 
QUORUM, 

when  necessary  to  organization,  245. 

adjournment,  361. 

transaction  of  business,  369. 

a  call,  439. 
necessary  to  receiving  and  sending  a  message,  817. 

petitions  in  House  of  Commons,  1154. 
origin  of  term,  247. 
how  many  constitute,  247,  261. 

presence  or  absence  of,  how  and  by  whom  determined,  253,  260. 
presiding  officer,  when  counted  to  make,  309,  369. 
when  presumed,  369. 
as  affecting  decision  of  question,  370. 
in  committee  of  the  whole,  1995. 

RECEIVING  OR  RETURNING  OFFICERS, 

ministerial  and  judicial  acts  of,  16,  87,  140. 

casting  vote  of,  92,  118. 

misconduct  or  neglect  of,  138. 

proceedings  of,  control  over,  141. 
when  void,  195. 

two  opposing  sets  of,  168. 

mistakes  of,  170. 

frauds  of,  172. 

qualifications  and  conduct  of,  as  affecting  elections,  193. 

presumed  to  be  legally  appointed,  194. 

duties  of,  prescribed  by  law,  201. 

instances  of  irregular  conduct  of,  203. 

to  return  person  really  elected,  though  not  declared  to  be  so,  207,  209. 

control  of  legislature  over,  1049. 
RECONSIDERATION, 

motion  for,  1264. 
REGULARITY, 

of  proceeding,  rules  relating  to,  1723. 
REMONSTRANCE, 

definition  of,  1077. 
REMOVAL, 

as  affecting  right  to  vote,  39. 
REPLY, 

privilege  of,  1594,  1605. 

to  whom  conceded,  1605. 


INDEX.  1057 

REPLY  —  continued. 

privilege  of,  only  exercised  once,  1606. 
limitation  of,  1607. 
REPRESENTATIVE  GOVERNMENT, 
fundanicnlul  idea  of,  14. 
distingiiisliing  characteristics  of,  232. 
requisites  to  existence  of,  232,  235. 
free,  0(iiiality  of  representation  requisite  to,  233,  235. 
REPRESENTATIVES, 

iu  congress,  qualifications  of,  prescribed  by  constitution  of  U.  S.,  65,  77. 

cannot  be  altered  by  congress  or  the  Status,  65 
house  of,  analogy  of,  to  House  of  Commons,  274. 
organization  of,  274. 
oilicers  of,  274. 

daily  sitting  of,  how  opened,  371. 
division  of,  in  voting,  404. 
order  of  business  in,  1529. 
requisitions  of,  for  papers,  returns,  etc.,  928. 
house  of,  in  Massachusetts,  how  organized,  242. 
REPRBIAND,  682. 
RESIDENCE, 

a  qualification  of  an  elector,  36. 

acquisition  of,  not  affected  by  other  disqualifications,  43. 
as  a  qualification  of  a  member,  61. 
not  affected  by  temporary  absence,  73. 
RESOLUTIONS, 

as  a  source  of  parliamentary  rules,  779. 
definition  of,  798. 
kinds  of,  801. 

presented  to  executive,  905,  907. 
reported  by  committee,  1938,  1957,  2011. 
as  a  fbnii  of  legislation,  2403. 
RESOLVE, 

nature  of,  752. 
RETROSPECTIVE  LAWS,  771. 
RETURN,  101,  132. 
meaning  of,  16. 

of  writs  of  election,  132.     See  Appendix,  V. 
indentures  of,  133,  555. 
special,  or  double,  134,  236. 
purpose  of,  136,  235. 
controverted,  142. 
imperfect,  151. 
to  whom  made,  151. 

given  or  sent,  230. 
validity  of,  when  may  be  examined,  152. 

if  made  on  only  part  of  votes  received,  173. 
amendment  of,  151,  166,  170. 
as  affecting  right  of  membership,  167. 
(leteriiiininij;  rights  of  members,  229. 

89 


i05S  INDEX. 

RETURN  —  continued. 

good  in  substance,  not  to  be  set  aside,  168. 

void,  if  repugnant,  169. 

wlieu  may  be  set  aside,  171. 

couditional,  174. 

irregular,  instances  of,  203. 

examination  of,  and  decision  upon,  230,  260. 

from  public  officers,  etc.,  as  evidence,  747. 

of  official  persons  to  parliament,  908,  1048. 

motions  for,  911. 
to  congress,  928. 
evidence  of  membership,. 1050. 
RIGHT  OF  SUFFRAGE, 
how  regulated,  22. 

who  excluded  from  exercising,  24,  47. 
constitutional  requisites  to,  33. 
how  affected  by  removal,  39. 
exercise  of,  89. 
nature  of,  114. 

not  affected  by  agreement  of  rival  candidates,  200. 
RIOTS, 

as  affecting  return,  1 72. 

election,  182. 
protection  of  parliament  against,  1063. 
RULES, 

and  orders,  248,  613. 
of  external  proceeding,  773,  791. 
internal  "  774,  791. 

necessity  of,  776,  794. 
Sources  of,  777,  791. 
suspension  of,  794,  1478,  1564. 
great  purpose  of,  2570. 

SENATE, 

in  certain  States,  number  of  members  in,  244. 
how  elected,  244. 
vacancies  in,  how  filled,  244. 
of  U.  S.,  how  composed,  20,  272,  489,  501, 
chosen,  272. 
vacancies  in,  272. 
organization  of,  272. 
expires  by  classes,  272. 
officers  of,  272,  289,  298,  334. 
analogy  of,  to  House  of  Lords,  272,274. 
an  executive  council,  278,  624. 
rules  and  orders  of,  785. 
requisitions  by,  for  papers,  returns,  etc.,  928.  • 
continuity  and  permanence  of.  Appendix,  L 
SENATORS, 

choice  of  by  legislature,  in  Massachusetts  and  Maine,  1 76. 


INDEX.  1059 

SEllGEANT-AT-ARMS,  335. 
duties  of,  336,  1062. 
ofEcers  appointed  by,  336. 

actions  against,  337.  ' 

vacancies  in  office  of,  337. 
rooms  of,  342. 
to  summon  witnesses,  915. 
witnesses  in  custody  of,  916,  948. 
SESSION, 

what  constitutes,  495,  503,  507,  584. 
termination  of,  495,  503. 
SETTLEMENT, 

a  qualification  of  an  elector,  46. 
SICKNESS, 

as  ail'ectinff  eligibility,  83. 
SOLICITOR-GENERAL, 

jjarliamcnt  may  require  services  of,  1052. 
SOVEREIGN, 

introduction  of  name  of,  in  debate,  to  influence  proceedings,  irregular,  1715, 

1721. 
legislative  power  of,  1716. 
SPEAKER, 

appointment  of  committees  by,  23  7. 

origin  of  term,  285. 

decision  of,  questioned,  387,  1460,  1464,  1752,  1822. 

when  to  decide  peremptorily,  397,  1809. 

to  put  questions  to  witnesses,  962. 

questions  to,  1564,  1579. 

to  preserve  order,  1747,  1765. 

to  explain  grounds  of  opinion,  1753. 

when  to  vote,  1806,  1882. 

to  direct  proceedings  on  a  division,  1801. 

questions  framed  by,  formerly,  2130. 

of  house  of  commons,  election  of,  219. 

to  be  approved  by  sovereign,  219,  222,  224. 

prayer  of,  to  sovereign,  225. 

salary  of,  444. 

and  in  U.  S.,  difference  between,  237,  286. 

prayer  of,  see  Appkndix,  VII. 

always  a  member,  285,  302. 

functions  of,  288,  290,  302. 

tenn  of  office  of,  296. 

none  pro  tern.,  313. 

cannot  present  petitions,  1132. 
in  U.  S.,  may  present  petitions,  1133. 
SPEAKING, 

personal  deportment  of  members  in,  1549. 
what  is  understood  by,  1583. 
moving  or  seconding  equivalent  to,  1585. 
rules  respecting,  1582. 


iOGO  INDEX. 

SPEAKING  —  continued. 

allowed  a  second  time  in  special  cases,  1608. 

more  than  once  in  committee  of  the  whole,  2001. 

must  be  to  the  question,  1618. 
SPEECH, 

introduction  into,  of  extracts  from  journals,  etc.,  1659. 

matter  from  extraneous  sources,  1661. 
STATE  LEGISLATURES, 

functions  of,  9,  717,  719. 
STATUTES, 

provisions  of,  when  directory,  201. 

peremptory,  201. 

as  a  source  of  parliamentary  rules,  788. 

form  of,  and  mode  of  passing,  2046. 

parts  of,  2093. 

See  Bills. 
STRANGERS, 

to  withdraw  before  division,  1800. 
STUDENTS, 

not  residents,  38. 
SUPPLY, 

committee  of,  2026,  2031. 

in  congress,  2042. 
SUPPRESS, 

motions  to,  1389. 
SUPREMACY.    See  Oath. 

TAX, 

payment  of,  a  qualification  of  a  voter,  45,  47,  54. 
for  a  voter,  188. 

petitions  against,  1146. 

originated  in  house  of  commons,  2303. 
TELLEP^S,  388. 

appointment  of,  1801. 

duty  of,  1803. 

disaarreement  of,  1808. 

misrepresentation  by,  1813. 
TERRITORIAL  GOVERNMENTS,  9. 
TERRITORIES, 

delegates  from,  to  congress,  253,  281.  " 

TRIBUNE, 

what,  and  where  used,  379. 

USAGES, 

as  a  source  of  parliamentary  rules,  778. 

VACANCY, 

howfiUed,  135,452,480. 

in  senates  of  certain  States,  244. 


INDEX.  1061 

VETO, 

of  executive,  450,  700. 

bill  may  be  passed  notwithstanding,  414,  2381. 
power,  absolute  in  Great  Britain,  2375. 

qualified  in  U.  S.,  2375. 

requisitions  to  exercise  of,  2377. 
VICE-PRESIDENT  OF  THE  UNITED  STATES, 

functions  of,  as  president  of  senate,  289,  298. 
VOICES, 

taking  sense  of  house  by,  1794. 
VOTE, 

only  one,  to  be  given  at  same  election,  91. 
casting,  of  returning  officers,  92,  118. 

none,  in  House  of  Lords,  288,  302. 

of  presiding  officer,  298,  301. 

why  so  called,  303,  306. 

when  given,  303,  306,  310. 

how  given,  306,  309,  311. 

given  by  mistake,  307. 

reasons  assigned  for,  307,  311. 
queried,  97. 
scrutiny  of,  98. 

when  to  be  changed  or  corrected,  99,  108,  1813,  1825,  1828. 
declaration  of,  101. 

several  candidates  having  equal  number  of,  1 24. 

for  un(jualified  persons,  1 75.  •  "" 

when  void,  176. 

illegal  reception  and  rejection  of,  198. 
reconsideration  of,  282. 

cannot  take  place  in  committee,  1915,  2000. 
by  proxy,  in  house  of  lords,  401,  434,  1818. 
may  be  rescinded,  1260. 
right  and  duty  of  members  to,  1784,  1846. 
by  member  who  should  have  withdrawn  on  a  division,  1812. 
members  properly  in  house  may  be  compelled  to,  1795,  1800,  1803. 
diflFerent,  given  by  voice  and  on  division,  1 795. 
whether  momber  coming  in  between  first  and  second  putting  of  question  i« 

entitled  to,  1797,  1814. 
members  of  house  of  lords  may  protest  against,  1820. 
accidental  omission  of,  1825. 
allowance  and  disallowance  of,  1833. 

decision  reversed  by,  1849. 
member  to  be  heard  on  motion  to  disallow,  1848. 
improperly  refused,  motion  to  allow,  1834. 
disallowed  on  account  of  interest  of  members,  1839. 
parties  named  in  bill  cannot,  1846. 
members  pecuniarily  interested  in  bill  cannot,  1846. 

may,  after  disclaiming,  1846. 
cannot  be  reconsidered  in  committee,  1915,  2000. 
VOTERS.     See  Electors. 


1062  INDEX. 

VOTES, 

bill  passed  b^  miscounting,  Appendix,  ViLL 

WAGER, 

on  event  of  election,  188. 
WARRANT, 

time  of  opening  poll  not  specified  in,  203. 
of  presiding  officer,  290,  316.    Appendix,  VL 
WAYS  AND  MEANS, 

committee  of,  2026,  2035. 

in  congress,  2042. 
WITNESSES, 

members  exempt  from  serving  as,  598. 

attendance  of,  how  compelled,  634,  662,  934,  941,  1902. 

in  House  of  Lords,  sworn,  955. 

Commons,  not  sworn,  635,  657,  661,  955. 
in  U.  S.,  when  sworn,  958. 
expenses  of,  660. 
subornation  of,  630. 
tampering  with,  1014. 
summoning,  658. 

occasions  for,  930. 
may  be  required  to  produce  papers,  etc.,  936 
orders  with  reference  to,  937. 
for  attendance  of,  938. 

service  of,  945. 

disobedience  of,  946,  951,  1908. 
before  select  committee,  939,  942,  994,  1017. 

election 
if  members,  941. 

ofiicers,  944. 
misconduct  of,  944,  993,  1009,  1018. 
absconding  of,  947. 
if  in  custody,  948,  962. 
may  be  imprisoned,  950,  1011. 
place  of  attendance  of,  953. 
inabihty  of,  to  attend,  951,  954. 
how  examined,  959,  966,  968,  974,  985,  992. 
by  whom  questioned,  962,  974. 
answers  of,  to  whom  given,  964. 
cross-examination  of,  965. 
deportment  towards,  and  of,  967,  973,  1020. 
competency  of,  970. 
temporary  withdrawal  of,  980,  992. 
objections  to  questions  to,  978,  981,  989. 

by  witness,  982. 
when  excused  from  answering,  983. 
minutes  of  examination  of,  987. 
may  correct  mistakes,  988,  991. 
before  committee  of  the  whole,  993,  1016 


INDEX.  1063 

WITNESSES  —  continued. 

privileges  of,  99G. 

freedom  of,  from  arrest,  997. 

protection  of,  against  consequences  of  disclosures,  1001. 
abuse,  etc.,  lOOC. 

bills  to  indemnify,  1005. 

refusal  of,  to  answer  or  produce  papers,  1011. 

false  testimony  by,  1012. 

prevariration  of,  1013. 

implication  of  others  by  testimony  of,  1024. 

custody  of  papers  produced  by,  1022. 
WOMEN, 

not  allowed  to  vote,  24,  30. 

when     "       "      "     31. 

not  eligible  to  office,  56. 
WRITS  OF  ELECTION,  193,  447,  451,  454,  457.     See  Appendix,  II. 

return  of,  132,  135.     See  Appendix,  V. 

not  in  use,  ordinarily,  in  this  country,  135. 

supersedeas  of,  456. 

TEAS  AND  NAYS, 

taking  question  by,  405,  414, 1493,  1615,  1823.     Appendix,  IX. 

when  may  be  taken,  1494. 

can  be  called  for  only  once  on  same  question,  1496. 

debate  concerning,  1497. 

cannot  be  taken  in  committee  of  the  whole,  2000. 


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